Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., 2000 SCC 2

JudgeBinnie, J.
CourtSupreme Court of Canada
Case DateJanuary 14, 2000
JurisdictionCanada (Federal)
Citations2000 SCC 2;(2000), 250 A.R. 314 (SCC);182 DLR (4th) 561;82 Alta LR (3d) 211;[2000] 1 SCR 44;[2000] SCJ No 2 (QL);250 AR 314;251 NR 1;[2000] 10 WWR 187

Public School Bds. v. Alta. (A.G.) (2000), 250 A.R. 314 (SCC);

    213 W.A.C. 314

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [2000] A.R. TBEd. FE.161

Public School Boards' Association of Alberta et al. v. Attorney General of Alberta et al.

(26701; 2000 SCC 2)

Indexed As: Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al.

Supreme Court of Canada

Binnie, J.

January 14, 2000.

Summary:

On an appeal to the Supreme Court re­specting the constitutionality of amendments to the School Act, the Public School Boards' Association of Alberta and other appellants moved to introduce fresh evidence.

The Supreme Court of Canada, per Binnie, J., dismissed the motion.

Editor's note: for the trial and appeal de­cisions in this proceeding see 198 A.R. 204 and 216 A.R. 201; 175 W.A.C. 201.

Constitutional Law - Topic 25

General - Raising constitutional issues - Proof required - Legislative facts versus adjudicative facts - In proceedings respect­ing the constitutional validity of a statute, the Supreme Court of Canada, per Binnie, J., referred to the distinction between legislative and adjudicative facts, stating that "[a]djudicative facts are those that concern the immediate parties and disclose who did what, where, when, how and with what motive or intent. Legislative facts are traditionally directed to the validity or purpose of a legislative scheme under which relief is being sought. ... The usual vehicle for reception of legislative fact is judicial notice, which requires that the 'facts' be so notorious or uncontroversial that evidence of their existence is un­necessary. Legislative fact may also be adduced through witnesses. The concept of 'legislative fact' does not, however, pro­vide an excuse to put before the court controversial evidence to the prejudice of the opposing party without providing a proper opportunity for its truth to be tested. ..." - See paragraphs 4 and 5.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - The Supreme Court of Canada, per Binnie, J., referred to the test for the admission of fresh evidence on appeal as set out in R. v. Palmer (S.C.C.), stating that a comparable rule in terms of fresh evidence of adjudicative fact applied in civil cases - The court further stated that "[t]he requirements of due diligence, rele­vance, credibility and decisiveness are also pertinent to an application to adduce fresh evidence of legislative fact. While ... proof of legislative fact is 'subject to less strin­gent admissibility requirements', this does not mean that the Palmer require­ments are altogether dispensed with. The Palmer principles reflect a broader judicial policy to achieve finality on the factual record at the trial level, with very limited excep­tions. The matters in issue should narrow rather than expand as the case proceeds up the appellate ladder. ..." - See paragraphs 6 to 10.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - On appeal to the Supreme Court of Canada, the appellants moved to introduce fresh evidence to be established as legislative fact evidence - The evidence had a direct bearing on the matters in dispute and the respondents considered it to be controversial - The Supreme Court of Canada, per Binnie, J., stated that in the circumstances fairness suggested that the appellants be precise as to the points sought to be established by the evidence and what, in particular, was relied on in support thereof in the mass of "fresh" material presented - Such precision would allow the court to better evaluate its importance and weight and enabled op­posing counsel to evaluate the extent of the controversy posed by the evidence and whether, if admitted, it would have to be responded to - A reasonable practice would be to include in the application a draft of the paragraphs to be inserted in the factum, with supporting references - See paragraph 11.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - On appeal to the Supreme Court of Canada, the appellants sought to introduce fresh evidence which predated the trial - The appellants asserted that they had no reason to tender the evi­dence until after the trial when the Supreme Court of Canada delivered a judgment identifying "respect for minori­ties" as a fundamental constitutional prin­ciple - The Supreme Court of Canada, per Binnie, J., stated that recent decisions did not authorize a party to relitigate the trial by bringing in evidence that was either withheld or overlooked at the original hearing - Applications for fresh evidence could not be justified solely on the basis that new jurisprudence had given counsel a new twist on an old argument - See paragraph 12.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - On an appeal respect­ing the constitutional validity of amend­ments to the School Act, the appellants sought to adduce a breakdown of the stu­dent population by faith in support of the submission that the bulk of Alberta stu­dents affiliated with religious minorities attended public school - The respondents opposed the application - The Supreme Court of Canada, per Binnie, J., refused to admit the evidence, stating that "[t]his is a prime illustration of the desirability of having statistical information presented to the court in a timely way through an expert who can be cross-examined on their provenance and significance. If the evi­dence was important, it ought to have been led at trial. The post-trial 'up-dated' statis­tics do not provide a bootstrap to get into the record other statistical evidence which, with due diligence, might have been led at trial. Lack of due diligence is fatal to this aspect of the application." - See paragraph 13.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - On an appeal, to the Supreme Court of Canada, the appellants sought to introduce two newspaper articles as "legislative fact" - The Supreme Court of Canada, per Binnie, J., refused to admit the fresh evidence - The articles did not constitute legislative fact - The articles represented the opinion of two authors writing in daily newspapers who might or might not have had the underlying facts straight and whose opinion might or might not have been valid - The authors could not be cross-examined - The contents of the articles appeared to be controversial - See paragraph 14.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - Appellants sought to introduce as fresh evidence a 78 page report which included a lot of statistical information derived from Statistics Canada Census Reports - The Supreme Court of Canada, per Binnie, J., refused to admit the evidence - There was no way of testing either the methodology or the validity of opinions expressed in the report - There was no affidavit by the report's author who could be cross-examined on its contents - In effect, the appellants sought to use the report in part as untested expert opinion and in part as a general warehouse of unexplained and untested extrapolations of statistical data - Neither role was a per­missible objective of a fresh evidence application - See paragraphs 15 and 16.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - On an appeal to the Supreme Court of Canada respecting the constitutional validity of amendments to the School Act, the appellants sought to introduce an interim report of a committee of the Legislative Assembly as fresh evi­dence - The report was prepared to assess the education property tax system in Alberta - The report was preliminary in nature and consisted of 19 pages highlight­ing "key issues" that the committee pro­posed to inquire into, together with com­ments on the process and some interim steps - The Supreme Court of Canada, per Binnie, J., refused to admit the report - The report showed that the legislators were pursuing concerns in the area, but such pursuit did not expand or contract the constitutional provisions which were the subject matter of the appeal - The material was too tentative to have any bearing on the outcome of the appeal - See paragraph 17.

Practice - Topic 9095

Appeals - Supreme Court of Canada - Hearing of fresh evidence - [See all Prac­tice - Topic 9031 ].

Cases Noticed:

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250; 50 C.R.R. 59; 74 O.R.(2d) 763; 73 D.L.R.(4th) 686, refd to. [para. 4].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 6].

Dormuth et al. v. Untereiner et al., [1964] S.C.R. 122, refd to. [para. 8].

Varette v. Sainsbury, [1928] S.C.R. 72, refd to. [para. 8].

K.V.P. Company Limited v. McKie, [1949] S.C.R. 698, refd to. [para. 8].

R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214, refd to. [para. 9].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 12].

Counsel:

not disclosed.

Solicitors of Record:

not disclosed.

This motion was heard by Binnie, J., of the Supreme Court of Canada, who delivered the following judgment in both official lan­guages on January 14, 2000.

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