An appeal of a decision of an applications judge that the evidence in support of applications for judicial review be restricted to the certified Tribunal record was allowed. The applications judge erred in failing to consider that evidence outside of the administrative record can be considered where the grounds for review are any of the various forms of jurisdictional error.

Administrative law – Human rights complaints – Discrimination – Marital status – Decisions of administrative tribunals – Human Rights Commission – Judicial review applications – Evidence – admissibility – Jurisdiction

McFayden v. Canada (Attorney General), [2005] F.C.J. No. 1817, Federal Court of Appeal, November 2, 2005, Desjardins, Evans and Sharlow JJ.A.

An applications judge granted the Respondent’s motion and ordered that the evidence in support of two applications for judicial review be restricted to the certified Tribunal record.

The Canadian Human Rights Commission had dismissed the Appellant’s two complaints, one against the Canada Custom and Revenue Agency and another against Finance Canada. The Appellant alleged in the complaints before the Commission that the Respondent discriminated against him by treating him and other spouses of government employees living and working outside Canada in an adverse differential manner on the basis of marital status and/or nationality by deeming them residents of Canada and requiring them to pay taxes to the Canadian government on income earned abroad. The Appellant sought to include, in his judicial review applications, Affidavits which contained material which he had submitted to the Commission prior to its decisions but which the investigator had failed to bring to the Commission’s attention. He also sought to include material which had been before the investigator when she recommended dismissal of the complaints, but which neither she nor the Commission had previously produced to the Appellant prior to the filing of the applications.

The applications judge held that his authority extended only to a review of the decision of the Tribunal and in order to do that, he could only look at the material that was before that Tribunal.

The Federal Court of Appeal held that this decision was in error. The Court relied upon the “well established” principle that evidence outside of the record before the Tribunal can be considered where the grounds for review are any of the forms of jurisdictional error. The appeal was therefore allowed.

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