Executive Summary: Key Legal and Evidentiary Issues

• Procedural issue of whether plaintiffs in a proposed ArriveCAN class action could file a lengthy supplemental solicitor’s affidavit and thousands of pages of new documents after the evidentiary deadline and cross-examinations.
• Application of the Rosenstein v Atlantic Engraving Ltd test to motions, requiring that late evidence assist the Court, serve the interests of justice, avoid serious prejudice, and not have been reasonably available earlier.
• Failure by the plaintiffs to provide concrete, document-specific justification for the proposed 6,000–7,500 pages of ATIA responses and other materials, including no clear explanation of their relevance to certification or the motion to strike.
• Concerns about litigation fairness and “case splitting,” where plaintiffs saved their most specific, document-based arguments and timing explanations for reply submissions rather than including them in their initial motion materials.
• Potential prejudice to the defendant and burden on the Court if thousands of pages with no clear linkage to the issues were added into the record at this late stage, contrary to the scheduling order and Rule 3’s guiding principles.
• Clarification that class proceedings do not relax the evidentiary and procedural standards for late evidence; plaintiffs in class actions must still respect fixed timetables and satisfy the Atlantic Engraving test to introduce supplemental materials.

Factual background

This matter arises from a proposed class proceeding in the Federal Court concerning the federal government’s “ArriveCAN” application. The representative plaintiffs allege that ArriveCAN suffered from widespread technical failures that generated erroneous quarantine orders for travellers who had followed proper entry protocols and were in fact exempt from mandatory quarantine. The defendant is the Attorney General of Canada, named in respect of the Crown’s role in the design, implementation, and maintenance of the application. The statement of claim was issued in February 2024, and the litigation has advanced slowly through preliminary procedural skirmishes. In January 2025, the Court dismissed the Attorney General’s attempt to bring a motion to strike ahead of certification, and in April 2025 the Court issued a consensual scheduling order governing the timetable for both the certification motion and the motion to strike. Evidence was to be served by May 2025, with cross-examinations completed by December 2025. Within this framework, the parties complied with the prescribed steps and operated on the basis that the evidentiary record would be closed once cross-examinations concluded.

The motion to file supplemental affidavit evidence

After the main evidentiary timetable had run its course, the plaintiffs sought leave to file a supplemental solicitor’s affidavit. The affidavit was sworn by one of plaintiffs’ counsel and served after the deadline for serving evidence, but before cross-examinations finished. It was relatively short in narrative form—12 paragraphs—but attached a very large volume of exhibits: the re-amended statement of claim, an Auditor General’s report to Parliament on ArriveCAN, four sets of documents produced in response to Access to Information Act (ATIA) requests, a technical web page explaining HTTP status codes, and a redacted list of class members. In aggregate, these materials initially totalled nearly 7,500 pages. The affidavit confirmed that ATIA requests had been made in October 2024, several months after the action was commenced, and noted that some further ATIA requests were still pending. However, the affidavit itself offered almost no narrative explanation of how, specifically, these documents related to the live issues on the certification motion or the motion to strike. Nor did the moving materials include any separate evidentiary affidavit justifying the late service of the ATIA requests or explaining why the underlying records could not have been sought or put forward earlier in the process.

Nature and treatment of the proposed further evidence

The plaintiffs’ written submissions described the new materials in broad, general terms. They asserted that the Auditor General’s report and the ATIA productions provided extensive information about internal government awareness of ArriveCAN problems, procurement deficiencies, technical malfunctions, the volume of affected travellers, operational failures, and internal communications revealing known risks. On that basis, plaintiffs argued that the supplemental record was highly relevant and would “materially assist” the Court in analyzing the certification criteria and the motion to strike on a “complete factual record.” However, the plaintiffs did not initially direct the Court to particular documents or pinpoint page references within the massive exhibits to demonstrate exactly how the new materials would bear on specific elements of Rule 334.16 (the class certification criteria) or the defendant’s strike arguments. In response, the Attorney General opposed the motion. The defendant argued that the plaintiffs had not met their burden under the applicable test for late evidence, that the plaintiffs offered no evidence explaining the timing of the ATIA requests or justifying the volume of additional documents, and that certain parts of one ATIA response appeared to be protected by parliamentary privilege. The defendant also emphasized that adding thousands of pages at this stage, without any clear linkage to the certification or strike issues, would prejudice the defence and burden the Court.

Procedural test for late evidence on motions

Although there is no specific rule in the Federal Courts Rules that directly governs the filing of additional evidence on a motion after cross-examinations, the Court looked to the jurisprudence under Rule 312 and the Federal Court of Appeal’s decision in Rosenstein v Atlantic Engraving Ltd (Atlantic Engraving). While Rule 312 applies to applications rather than motions, prior authorities have applied the Atlantic Engraving test by analogy when parties seek to introduce further evidence at a late stage in a motion. Under that test, a party seeking to adduce new evidence must show that allowing it would serve the interests of justice, assist the Court, not cause substantial or serious prejudice to the opposing party, and that the evidence was not reasonably available earlier. The burden rests with the moving party to establish each component, and the Court is not required to sift through voluminous material to find relevance on its own initiative. The Associate Judge emphasized that litigation principles require parties to put their “best foot forward” in their main motion records, not to hold back detailed arguments or explanations for reply. Presenting key specifics only at the reply stage risks “case splitting,” which is unfair to the responding party and contrary to orderly procedure.

Findings on the plaintiffs’ evidence and arguments

The Court concluded that the plaintiffs did not satisfy the Atlantic Engraving criteria in respect of either the proposed solicitor’s affidavit as a whole or any of the individual exhibits. The generalized assertion that the supplemental material was “highly relevant” and would give the Court a fuller understanding of the ArriveCAN system was insufficient; relevance needed to be demonstrated in a focused, document-specific way. The Court was not prepared to review thousands of pages to determine on its own whether some subset might be helpful to the certification or strike motions. The plaintiffs compounded this problem by saving their detailed pinpoint references and their explanation for the timing of the ATIA requests for their reply submissions rather than including them in the initial motion record. The Associate Judge viewed this as splitting their case and disregarded those later arguments. The Court also expressed concern that the plaintiffs initially insisted that all of the documents were highly relevant and indispensable, yet in reply they unilaterally withdrew approximately 1,000 pages—largely in response to the defendant’s parliamentary privilege objection. This retreat undercut their earlier position that the entire record was necessary to assist the Court. As for specific exhibits, the Court noted that the re-amended statement of claim was already on the Court file, so it did not require duplication by affidavit. The plaintiffs had not shown when the Auditor General’s report became publicly available or that they acted promptly to seek leave to add it once it was published, nor had they demonstrated its concrete relevance to the certification or strike issues. The ATIA responses raised additional concerns: there was no evidence explaining why the ATIA requests were only launched in October 2024, no attempt to align their timing with the scheduling order, and no detailed demonstration of how particular documents would meaningfully assist on the pending motions. Admitting thousands of pages of ATIA material at this stage, with no precise linkage to the issues, risked prejudicing the defendant and overburdening the Court. The other exhibits were similarly unsupported. The technical “HTTP status codes” webpage lacked any evidentiary narrative explaining who authored it, how it related to the existing record, or why it could not have been obtained earlier. The redacted class member list was also unexplained; the Court had no basis to know whether it duplicated or altered information already in evidence. Overall, the plaintiffs failed to discharge their burden to show that any portion of the supplemental material would assist the Court in a way that justified disturbing the established timetable.

Class actions, evolving records, and procedural discipline

The plaintiffs argued that class proceedings are inherently complex and that evidentiary records often evolve over time, warranting procedural flexibility and a more permissive approach to supplemental affidavits. The Court acknowledged that class actions differ from individual cases, but held that they remain subject to the same basic rules and expectations. A fixed schedule for certification cannot operate on the assumption that parties may add substantial new evidence at will, especially not late in the process and without satisfying the established test. In this case, when the timetable was set, the plaintiffs already knew that ATIA requests had been made and that further productions might arrive. They did not seek to build rolling disclosure into the schedule or put the defendant and the Court on notice that large volumes of additional documents might later be tendered. The Associate Judge emphasized that the Atlantic Engraving test is not relaxed or dispensed with simply because a proceeding is a proposed class action. Parties must still respect timetables, act with diligence, and demonstrate that late evidence is both necessary and just in the circumstances.

Ruling and outcome

The Court dismissed the plaintiffs’ motion for leave to file the supplemental solicitor’s affidavit and associated exhibits. It held that the plaintiffs had not demonstrated that the proposed new evidence was directly relevant to, or would assist with, the certification motion or the motion to strike, nor had they adequately explained its timing or addressed the prejudice and procedural concerns arising from its late introduction. The Associate Judge concluded that, in light of these deficiencies, it was not in the interests of justice to expand the evidentiary record as requested. On costs, the Attorney General of Canada did not seek an award, and the Court accordingly made no order for costs. As a result, the successful party on this motion was the defendant, the Attorney General of Canada, and there was no monetary award, costs, or damages ordered; the decision does not resolve the underlying liability issues or quantify any damages, and no total amount in favour of the successful party can be determined from this order.