Oct 15, 2020

Evidence in Judicial Review of Examination Appeals

Wan v The National Dental Examining Board of Canada, 2019 BCSC 32 (CanLII)

Wan v The National Dental Examining Board of Canada, 2019 BCSC 32 (CanLII), <http://canlii.ca/t/hwz7b> the Examining Board was permitted to file an affidavit from an expert explaining the process. The applicant objected arguing that the evidence offended the fresh evidence rule but the Court admitted the evidence finding that it really was appropriate to the context:

In contrast to the objectionable fresh evidence in Air Canada [2018 BCCA 387], I find that the evidence the petitioner identifies as objectionable in the Gerrow Affidavit is not fresh evidence. It does not seek to adduce evidence of facts that were not before the tribunal, nor does it somehow reconstruct or step outside of the bounds of the Decision. Rather, in general, it is evidence that relates to the policies and procedures employed by this specialized tribunal and which would have been known to the Appeals Committee members. It permissibly summarizes, explains and consolidates some of the more technical information contained in the documents that make up the record; provides general background information that assists me in understanding the history and nature of the case; contains a written description of the physical evidence that is not before me but that forms part of the record before the Appeals Committee; and provides information on matters that are of common understanding to those in the dentistry field and the foundation from which the Appeals Committee approaches an appeal. Overall, the evidence contained within the Gerrow Affidavit helps educate me on matters that are within the specialized expertise of the Appeals Committee and which form the common understanding of those who operate in this highly particular field.

Examining appeal bodies can rely on this decision to provide guidance as to what should and should not be included in their affidavits on judicial review. Prudent examination bodies might include much of this information as part of their record when processing the examination in the first place (e.g., by notifying applicants of the background documents) so no affidavit is necessary in a future proceeding.