CANADA Law and Practice Contributed by: Sujit Choudhry and Mani Kakkar, Circle Barristers
8. Evidence 8.1 Disclosure/Discovery
poenas are very uncommon in applications for judicial review, which are meant to be a summary legal procedure decided largely based on written materials. There is no Canadian version of the English law “duty of candour” . 8.3 Live Evidence and Cross- Examination In actions, witnesses provide live evidence sub - ject to cross-examination in court. In applica - tions for judicial review and applications, cross- examination of witnesses who have provided affidavits occurs before a court reporter; the transcript is filed in court. 9. Time Limits and Preliminary Steps 9.1 Preliminary Requirements There is no requirement to complete any prelimi - nary steps before issuing a challenge. 9.2 Exhausting Internal Appeals Claimants must exhaust all internal administra - tive appeals before commencing a challenge to an executive decision. Courts will decline to hear judicial reviews unless claimants have done so. 9.3 Time Limits Challenges to executive action must usually be brought within 30 days of the decision being made, in the interests of efficiency. Constitu - tional challenges to legislation that are not con - nected to executive action are subject to the general limitation period from the date of the constitutional violation (eg, two years in Ontario). 9.4 Evidence Required to Initiate a Claim To initiate a claim, a claimant is not required to adduce evidence. They need only issue an origi - nating process (eg, a notice of application for
The government’s disclosure obligations depend on the nature of the legal challenge. In applica - tions for judicial review of executive action, in general, the evidentiary record consists of the materials that were before the administrative decision-maker. In some cases, the government may supplement these materials with supporting affidavits from government officials. In the Federal Court, it is possible for an appli - cation for judicial review to proceed as if it were an action, where there is full discovery and a trial. Proceeding in this matter also gives claim - ants access to both the traditional remedies of judicial review (described below) and damages, which is otherwise not available. This sort of combined proceeding is not possible in Ontario. In some provincial superior courts (eg, Ontario), claimants who are not seeking judicial review of executive action can challenge the constitu - tionality of legislation directly, through an action or a proceeding known as an application. For applications, evidence is adduced by affidavits, on which cross-examinations can occur before a proceeding. An application is more efficient than an action and is increasingly used in con - stitutional challenges to legislation, especially by public interest litigants. 8.2 Alternatives to Disclosure/Discovery In applications and applications for judicial review, claimants can obtain disclosure of addi - tional evidence not disclosed by government by making demands for production from affiants (if there are any) and requests for undertakings during cross-examinations of affiants. In limited cases, it possible to obtain disclosure through subpoenas for witnesses and documents. Sub -
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