The applicant must serve and file 3 copies of its record within 20 days after completion of all parties’ cross-examinations or the expiration of the time for doing so, whichever is earlier.
What Should the Applicant’s Record Contain?
The applicant’s record should contain the following documents, in the same order as described:
(a) a table of contents giving the nature and date of each document in the record;
(b) the notice of application;
(c) any order in respect of which the application is made and any reasons, including dissenting reasons, given in respect of that order;
(d) each supporting affidavit and documentary exhibit;
(e) the transcript of any cross-examination on affidavits that the applicant has conducted;
(f) the portions of any transcript of oral evidence before a tribunal that are to be used by the applicant at the hearing (likely none in the case of a judicial review of a CRA decision);
(g) a description of any physical exhibits to be used by the applicant at the hearing; and
(h) the applicant’s memorandum of fact and law.
The pages of the applicant’s record should be numbered consecutively, for ease of reference at the hearing.
What Should the Applicant’s Memorandum of Fact and Law Contain?
A memorandum of fact and law (also referred to as a “factum”) can be understood as a party’s written submissions to the Court. The memorandum of fact and law must contain consecutively numbered paragraphs and be divided into 5 parts:
- Part I must include a concise statement of the relevant facts.
- Part II must state the points in issue (i.e. the points in contention that the Court will be asked to decide).
- Part III must include a concise statement of the party’s submissions (i.e. arguments).
- Part IV must include a concise statement of the order that the party seeks, including any order concerning the costs of the appeal.
- Part V must include a list of the authorities that the party intends to refer to.
The memorandum of fact and law cannot exceed 30 pages, excluding Part V. If a party wants to file a memorandum exceeding 30 pages, it must ask for the Court’s permission. Unless the party can provide a compelling reason, the Court will generally not grant an exception.
What if the Applicant Is Not in a Position to Prepare the Applicant’s Record?
If an applicant is not in a position to prepare its record, it must bring a motion and provide the Administrator with the relevant documents. The Court may order the Administrator to prepare a record on the applicant’s behalf. To be clear, the Administrator will only put the applicant’s record together using the documents provided by the applicant.
Last updated: October 9, 2016