Evidence in Judicial Review of Examination Appeals

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.

More Posts

Right-Touch Regulation Redux

Perhaps the most consequential document in professional regulation in the English-speaking world this century is Right-Touch Regulation published by the UK oversight body, the Professional

Reason Writing Omissions

Writing reasons for a regulatory decision is not easy, especially for non-lawyers. An administrative body’s reasons are the primary basis upon which a court will

Interim Orders – Take Two

The Alberta regulator for chiropractors got the interim order process right on its second try. In Basaraba v College of Chiropractors of Alberta, 2025 ABKB

Safeguarding

Most regulators screen complaints and reports as they arrive to assess the degree of risk presented and to prioritize matters appropriately. The UK regulator for