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3 min read
Overview
Evidence at judicial review is generally confined to the certified record of proceedings created by a public body. Parties usually cannot add “fresh” evidence. Here, the Court struck an accountant’s affidavit because none of the recognized exceptions for admission of new evidence applied. The judicial review application was dismissed, with the Court highlighting that consideration of affidavit evidence at judicial review is a rare exception, not the rule.
Rule 3.22 of the Alberta Rules of Court limits the evidence a court can consider on an originating application for judicial review. Generally, a court can only consider the certified record of proceedings, questioning transcripts (if questioning was permitted), and evidence permitted by another rule or the court. Affidavit evidence is rarely permitted, and only if the relief sought is not an order to set aside a decision or a certiorari order (an assessment of whether an administrative body acted lawfully).
However, how strongly do courts enforce these evidential restrictions? Why are parties so limited in providing evidence at a judicial review? What can municipalities do in the first instance to prepare for such stringent evidence rules?
Background
Enterprise Properties sought judicial review of several property tax bylaws, budgets, and the business plan (the “Budget”) of Flagstaff County. Enterprise challenged the Budget on the grounds that the County transferred property taxes to its municipal reserve funds for use outside of the fiscal year, which should lie outside of the County’s jurisdiction.
A key issue was the admissibility of an affidavit relied on by Enterprise. Enterprise intended that the affidavit, drafted by an accountant, provide background information to their position. This included an opinion on the reasonableness of the County’s use of surplus funds in the Budget.
What the Court Said
First, the Court stated that the default is that the certified record of proceedings filed by the public body provides the complete package of evidence considered at judicial review. Generally, affidavit evidence – by either the public body or the applicant - cannot change or supplement the record available at the time that the decision maker made a decision. This is because the court’s role at a judicial review is not to provide a de novo hearing. Rather, the court simply reviews the original tribunal’s decision. In other words, “[e]vidence challenging the wisdom of the decision is not admissible.”
However, the Court noted the four exceptions set out in Rule 3.22, where new evidence can be admissible:
- Evidence that shows bias or a reasonable apprehension of bias, where the facts in support of the allegation do not appear on the record.
- Evidence that demonstrates breaches of the rules of natural justice which are not apparent from the record.
- Background information for other issues such as standing.
- Evidence in the situation where the administrative decision maker creates no record, or an inadequate record.
The Court raised a single case where affidavit evidence was admitted under subsection (d): Alberta's Free Roaming Horses Society v Alberta. In this case, there were no reasons provided for the decision under review by the court. As such, the affidavit in question was integral for the court to understand the application. The affidavit also did not add new evidence; it simply assisted the court in providing essential background information.
Ultimately, the Court struck the affidavit from the record and dismissed Enterprise’s application, noting that Enterprise’s argument was simply a disagreement with the County’s collection and allocation of funds for future expenditures. Noting that the affidavit was effectively expert opinion, the Court concluded that there was “absolutely no authority for the admission of expert opinion evidence on a judicial review.” None of the four exceptions applied and Enterprise did not seek to qualify the author of the affidavit as an expert.
Takeaways
It is critical that municipalities include cogent and detailed reasons for all decisions. This is because it is unlikely that a municipality will be permitted to supplement their initial reasons with further evidence on judicial review. In most situations, the vast majority of the evidence will have already been established at the time of judicial review and is largely contained in the public body’s certified record of proceedings.
In preparing decisions, municipalities should treat record-building as part of the decision. If evidence is not already in the record, there may be no opportunity to add or supplement it later. This means that municipalities should prioritize collection and organization of all relevant records, including reports, key financial materials relied upon, meeting minutes, resolutions/bylaws, and any records that reflect the basis for the decision. A practice of listing materials relied upon as part of the decision may, in some cases, be adequate while at other times more may be required.
Municipal disputes and judicial reviews can become complex very quickly, so it is advisable to consult a lawyer without delay. Contact Justin Denis, Anthony Burden, or any member of Field Law's Municipal Group for advice.
Link to Decision: Enterprise Properties Ltd v Flagstaff (County), 2026 ABKB 94
