No transcript & no reference to argument made

Federal Court. If a judicial review applicant cannot afford to order the transcript of a Tribunal hearing, can they nevertheless file an affidavit to describe the evidence given at that hearing? Can the absence from otherwise detailed reasons of any reference to a submission or argument made to an administrative decision-maker indicate that it is unlikely that such decision-maker considered such submission or argument? In determining the materiality of an error, can a court assume that the administrative decision-maker approached the decision with a closed mind?

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: If a judicial review applicant cannot afford to order the transcript of a Tribunal hearing, can they nevertheless file an affidavit to describe the evidence given at that hearing?

Question 2: Can the absence from otherwise detailed reasons of any reference to a submission or argument made to an administrative decision-maker indicate that it is unlikely that such decision-maker considered such submission or argument?

Question 3: In determining the materiality of an error, can a court assume that the administrative decision-maker approached the decision with a closed mind?

Question 4: In a case where an administrative decision-maker is required to weigh various considerations in determining whether a legislative provision is satisfied and attributes significant weight to a consideration in favour of the person affected by its decision, can it be said that an error in that determination will ordinarily not satisfy the materiality test and will therefore not be jurisdictional?

The FCA answered those questions as follows:

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