A recent Federal Court of Appeal decision, Bernard v. Canada (Customs and Revenue Agency), 2015 FCA 263, serves as a cautionary tale about the importance of collecting all necessary evidence and putting it before an administrative decision-maker in the first instance, rather than attempting to introduce it later on judicial review.

Applicants challenging administrative or government decision-making are generally prevented from introducing new evidence before the reviewing court that was not presented to the original decision-maker. This rule exists not only for efficiency but also to preserve the distinct roles entrusted to administrative decision-makers and reviewing courts by Parliament.

In Bernard, the applicant sought judicial review of a Public Service Labour Relations and Employment Board decision refusing to reconsider its earlier ruling, which the applicant alleged was tainted by a reasonable apprehension of bias. On judicial review, the applicant attempted to file an affidavit containing paragraphs and exhibits not previously before the board. The respondent moved to strike this new evidence.

The court found that this evidence could have been submitted to the board in the first instance and granted the respondent’s motion to strike it. The court emphasized that administrative decision-makers act as “merits deciders,” while reviewing courts act as “reviewers,” and evidence going to the merits must be presented at the administrative stage.

While the general rule is subject to exceptions, the court clarified that they did not apply here. Exceptions include evidence:

  • Provided as background information or a summary of evidence already before the decision-maker;
  • Showing a complete absence of evidence in the record; or
  • Pertinent to natural justice, procedural fairness, improper purpose, or fraud.

However, if evidence relevant to natural justice or procedural fairness was available during the administrative proceedings and the party could have raised it at the time, the exception does not apply.

This decision underscores the importance of seeking legal advice early to identify and collect all necessary evidence for administrative proceedings. Although administrative processes may be more informal than court proceedings, understanding and applying evidentiary principles is critical to maximizing the chance of success. Failure to do so may result in the exclusion of essential evidence on judicial review.