UL Canada Inc. v. Quebec (Attorney General)

Charron J. — The respondent, the Attorney General of Quebec, asks that portions of the applicant’s record and factum be struck out on the ground that they constitute fresh evidence that was not before the courts below. The material in question was filed with the Court in the context of the application for leave to appeal. The appellant accordingly submits that this evidence is part of the record.

The appellant’s submissions are not valid. The material in question cannot be regarded as evidence within the meaning of Rule 38(1)(d) of the Rules of the Supreme Court of Canada, SOR/2002-156, merely because it was filed in the context of the application for leave to appeal, and the filing thereof contravenes s. 62 of the Supreme Court Act , R.S.C. 1985, c. S-26 : see Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [1999] 3 S.C.R. 845, at para. 6.

In the alternative, the appellant seeks leave to file this material as fresh evidence pursuant to s. 62(3) of the Supreme Court Act . It submits that this material is relevant and is admissible as a legislative fact.

This submission cannot be accepted. The affidavit in question and the supporting material cannot be characterized as a legislative fact and, in any event, legislative facts are also subject to the conditions for admission of fresh evidence: see Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 1 S.C.R. 44, 2000 SCC 2, at para. 10. As mentioned by the Court, the tests for admission of fresh evidence are due diligence, relevance, credibility and decisiveness of the proposed evidence. In my view, the evidence does not meet these tests. There is no indication that the appellant could not have adduced this evidence at trial, so the due diligence test is not met in the case at bar. Also, the material in question raises a number of controversial questions and accordingly should not be admitted in evidence at this stage of the proceedings. Finally, the appellant’s fresh evidence is not determinative as regards the issues before the Court.

This material must therefore be struck from the record and any reference to it struck from the appellant’s factum.

The respondent Attorney General of Quebec also requests an order striking any reference to s. 121 of the Constitution Act, 1867 from the appellant’s factum. The respondent submits that the appellant’s argument that the impugned regulations violate s. 121 raises a new constitutional question that is not included in the order issued by the Chief Justice of the Court on August 12, 2004.

In my opinion, this argument is relevant to the constitutional questions and it is for the Court to determine whether it is valid. This second part of the motion is therefore dismissed.

The motion is granted in part, with costs.