Executive Summary: Key Legal and Evidentiary Issues

• The self-represented Applicant sought leave to file a Second Affidavit under Rule 312 of the Federal Courts Rules, which was opposed by Canadian National Railway on grounds of non-responsiveness, foreseeability, and prior availability of evidence.

• Court expressed deep concern over the Applicant's undeclared use of artificial intelligence that generated hallucinated case citations and misstated legal propositions, contrary to the Court's practice direction dated May 7, 2024.

• Evidence in the proposed Second Affidavit was found inadmissible as it was not in the actual possession of and considered by the Canadian Human Rights Commission when it made the Screening Decision and did not fall within recognized exceptions.

• Relevance of the Second Affidavit was not established, as it addressed a wide range of incidents dating back to 2016 rather than confining itself to the "pole removal incident" that was the subject of the CHRC's Screening Decision.

• The proposed Third Affidavit filed in reply was rejected as it consisted almost entirely of opinion, argument, and conjecture rather than facts within the Applicant's personal knowledge, contrary to Rule 81.

• Costs of $1,000.00, inclusive of disbursements and taxes, were awarded to CN as the successful party on the Rule 312 Motion.

Background of the dispute

Amit Arora, a self-represented litigant, brought a judicial review application against a decision of the Canadian Human Rights Commission dated February 21, 2025. The CHRC had issued a Screening Decision relating to Mr. Arora's complaint of discrimination against his former employer, Canadian National Railway. The Commission determined that an inquiry by the Canadian Human Rights Tribunal into a specific "pole removal incident" was warranted. The Complainant had asked the Commission to deal with all incidents and not just the pole removal incident; however, the Commission noted it had already rendered a decision dated June 15, 2023, deciding to deal only with the pole removal incident, and that the appropriate avenue to contest that decision would have been to apply to the Federal Court for judicial review.

The motions before the Court

Mr. Arora filed two motions in writing. The first was a Rule 312 Motion seeking permission to file a Second Affidavit, affirmed on August 14, 2025, as additional evidence, along with a request to suspend the deadline for filing the Applicant's Record. The second was a Rule 369 Reply Motion, filed on September 18, 2025, requesting an extension of time to file his Rule 312 Reply and leave to file an affidavit as part of that reply. CN objected to the admission of the Second Affidavit on three grounds: that it was not responsive to the Affidavit of Christine O'Neill affirmed on May 16, 2025, that all items raised were foreseeable at the time Mr. Arora served his First Affidavit or explicitly addressed in that affidavit, and that all exhibits were available when Mr. Arora filed his First Affidavit or could have been available with the exercise of due diligence. CN did not file a responding motion record on Mr. Arora's Rule 369 Reply Motion.

The Court's concerns regarding artificial intelligence

Associate Judge Kathleen Ring stated she was deeply troubled by Mr. Arora's written representations on the Rule 312 Motion because they misstated the law and cited hallucinated (i.e., fake) case law. For example, the cases cited as "Manitoba v. CHRC, 2016 FC 836" and "CP Rail v. Canada (AG), 2015 FC 1348" do not exist. The Court found that the only logical reason for these errors was that Mr. Arora relied upon generative artificial intelligence in preparing the document. The Federal Court's practice direction entitled "The Use of Artificial Intelligence in Court Proceedings" dated May 7, 2024 requires a litigant using AI to include a Declaration in the first paragraph of any document submitted to the Court stating that AI was used. Mr. Arora did not include the requisite Declaration and, of even greater importance, manifestly failed to verify the information in his written representations. The Court noted that presenting erroneous AI-generated content to the Court can mislead the Court, waste scarce judicial resources, put a litigant's case at risk, cause reputational damage to a litigant, and lead to sanctions.

Legal test for additional affidavits under Rule 312

The Court outlined the test for admitting additional affidavit evidence under Rule 312 as set out by the Federal Court of Appeal in Forest Ethics Advocacy Association v National Energy Board, 2014 FCA 88. The moving party must first satisfy two preliminary requirements: the evidence must be admissible on the application for judicial review, and the evidence must be relevant to an issue that is properly before the reviewing court. If these are met, the moving party must then establish that admitting the additional affidavit evidence is in the interests of justice. The principles guiding the Court's discretion include whether the evidence was available when the party filed its affidavits under Rules 306 and 307 or could have been available with the exercise of due diligence, whether the evidence will assist the Court in the sense that it is relevant and sufficiently probative that it could affect the result, and whether the evidence will cause substantial or serious prejudice to the other party. The Court emphasized that applications for judicial review are summary proceedings that should be determined without undue delay, and consequently, the discretion to permit the filing of additional material should be exercised with great circumspection.

Failure to meet admissibility requirements

The Court found that Mr. Arora did not discharge his onus to establish that the Second Affidavit contained admissible evidence. The general rule restricts the evidentiary record on judicial review to what was before the decision-maker. The Screening Decision stated that the CHRC reviewed the Complaint Form, the Report for Decision, and the submissions of the parties filed in response to this Report. The entire Certified Tribunal Record was only 66 pages in length, and Mr. Arora's written submissions that were before the CHRC were ten pages long. By comparison, the Second Affidavit contained 107 paragraphs and appended eleven exhibits containing voluminous documentary evidence. The Court rejected Mr. Arora's attempt to invoke the "background information" exception, finding that the evidence in the Second Affidavit was not a neutral and uncontroversial orienting summary but rather was intended to serve as additional evidence that supplements the record before the CHRC and was plainly meant to encourage the Court to form its own views of the factual merits. The Second Affidavit also consisted largely of impermissible opinion, argument, and conjecture, contrary to Rule 81 which requires the content of an affidavit to be confined to facts within the Applicant's personal knowledge.

Failure to establish relevance and interests of justice

The Court further concluded that the evidence in the Second Affidavit was not relevant to the issue properly before the reviewing court. The Second Affidavit contained a myriad of evidence dealing with a wide range of incidents dating back to 2016 and did not confine itself to the pole removal incident. The Court was not persuaded that this wide-ranging evidence was relevant to the issue of whether the CHRC acted contrary to law in determining that an inquiry by the Tribunal into the pole removal incident was warranted. Mr. Arora served his First Affidavit, which contained 128 paragraphs and 606 pages of documentary evidence, on April 24, 2025. Apart from Exhibits M and N, the evidence in the Second Affidavit significantly pre-dated April 24, 2025, meaning the vast majority was available to Mr. Arora and could have been included in the First Affidavit with the exercise of diligence. Mr. Arora acknowledged in his Notice of Motion that the evidence in the Second Affidavit was evidence that was in the Applicant's possession. The Court noted that Rule 312 is not there to allow a party to split its case, and a party must put its best foot forward at the first opportunity.

Ruling and outcome

The Court granted Mr. Arora's Rule 369 Reply Motion in part, allowing an extension of time to file written representations in reply on the Rule 312 Motion, but dismissed his motion for leave to file the proposed Third Affidavit as part of his Rule 312 Reply. The Rule 312 Motion for leave to file the Second Affidavit was dismissed. Costs of the Rule 312 Motion were fixed at $1,000.00, inclusive of disbursements and taxes, payable by Mr. Arora to CN in any event of the cause. Mr. Arora was ordered to serve and file the Applicant's Record, along with proof of service, by February 9, 2026, with an explicit direction that if he chooses to use generative AI in preparing the Applicant's Record, he shall make a Declaration in accordance with the Court's practice direction and he shall verify the information generated by AI, failing which he may face sanctions for non-compliance.