Executive Summary: Key Legal and Evidentiary Issues

• Self-represented Applicant Amit Arora sought judicial review of a Canadian Human Rights Commission decision that referred only one incident (the "pole removal incident") for inquiry, out of a number of alleged incidents of differential treatment and discrimination involving Canadian National Railway.

• Associate Judge Ring dismissed Arora's motions to file additional affidavit evidence under Rule 312, finding the proposed affidavits inadmissible, irrelevant, and not in the interests of justice, while granting a partial extension of time for reply submissions.

• Concerns arose over Arora's undeclared use of generative artificial intelligence in preparing submissions, which resulted in hallucinated (i.e., fake) case law and erroneous legal propositions contrary to the Court's AI Practice Direction.

• Justice Gleeson upheld the Associate Judge's January 2026 Order on appeal under Rule 51, finding no reviewable error in the application of the legal tests from Forest Ethics and Amgen for admitting additional evidence.

• Arora's procedural fairness argument — that the Associate Judge drew adverse credibility inferences without notice — was rejected, as the Court found no such negative inference was drawn nor did it influence the exercise of discretion.

• Canadian National Railway was awarded costs of $1,000 on the initial Rule 312 Motion and an additional $600 on the Rule 51 appeal motion, both payable by the Applicant.

The underlying human rights complaint and the CHRC screening decision

Amit Arora, a self-represented applicant and former employee of Canadian National Railway (CN), initiated a complaint under the Canadian Human Rights Act, RSC 1985, c H-6, in 2019, alleging a number of incidents of differential treatment and discrimination involving his former employer. The Canadian Human Rights Commission (CHRC) reviewed the complaint and issued a screening decision under section 49 of the Act. The CHRC determined that an inquiry by the Canadian Human Rights Tribunal into the complaint was warranted, but requested that the Tribunal inquire only into one specific incident — referred to as the "pole removal incident," in which Arora was asked to remove a pole as part of his work. As to the other incidents raised by Arora, the CHRC noted it had already rendered a decision dated June 15, 2023 deciding to deal only with the pole removal incident, and stated that had Arora wished to contest that prior decision, the appropriate avenue would have been to apply to the Federal Court for judicial review. The CHRC stated that reviewing that prior decision was not the task before it. Arora initiated the underlying application seeking judicial review of this screening decision.

Arora's application for judicial review and initial affidavit filings

In pursuing his application for judicial review in the Federal Court (Docket T-977-25), Arora served his first affidavit in support of the application on CN on April 24, 2025, pursuant to Rule 306. The first affidavit was a substantial filing containing 128 paragraphs and 606 pages of documentary evidence. The Certified Tribunal Record (CTR), which was only 66 pages in length, was transmitted by the CHRC to the Court Registry and to Arora on April 29, 2025. Arora's written submissions that had been before the CHRC when it made the screening decision were ten pages long. On May 20, 2025, CN served and filed its responding affidavit under Rule 307.

Attempts to file additional affidavit evidence

Following CN's responding affidavit, Arora sought to introduce additional evidence through a series of motions. His initial motion record seeking leave to file a second affidavit, filed on June 10, 2025, was dismissed without prejudice by Associate Judge Martha Milczynski in an Order dated July 18, 2025, because the motion record was deficient — Arora had not included his first affidavit or the CN affidavit, preventing the Court from determining or evaluating whether the proposed affidavit was proper reply. On August 15, 2025, Arora again brought a motion under Rule 312 seeking leave to serve and file a revised additional affidavit affirmed on August 14, 2025, submitting it responded to new assertions in the CN affidavit. The motion record on this Rule 312 Motion was filed on September 12, 2025. In a responding motion record dated August 25, 2025, CN opposed the admission of the revised second affidavit on three grounds: it was not responsive to the CN affidavit; all items raised were foreseeable at the time Arora served his first affidavit; and all exhibits were available or could have been available with the exercise of due diligence. Arora then filed a further motion on September 18, 2025, requesting an extension of time to file reply submissions under Rule 369(3) and leave to file a supplementary affidavit as part of that reply.

Associate Judge Ring's January 19, 2026 decision

Associate Judge Kathleen Ring considered both motions and issued her Order on January 19, 2026. She first addressed the reply motion, finding that the proposed third affidavit was not admissible evidence — it was not confined to facts, but rather consisted almost entirely of opinion, argument, and conjecture, contrary to Rule 81 and the principles in Amgen Canada Inc v Apotex Inc, 2016 FCA 121. Reply evidence on a motion is only permitted in "unusual circumstances" where considerations of procedural fairness and the need to make a proper determination require it, and the Court found no such circumstances existed. She further found that, insofar as the proposed third affidavit contained evidence, that evidence was available when Arora first filed his Rule 312 Motion, or could have been discovered with the exercise of due diligence. She did, however, grant Arora an extension of time to file written reply submissions, noting that deficiencies with both Arora's motion record on the Rule 312 Motion and CN's responding motion record may have created some confusion regarding the timing to file the reply motion.

Turning to the Rule 312 Motion, the Associate Judge identified a significant concern with Arora's written representations: they misstated the law and cited hallucinated (i.e., fake) case law. The Court attributed this to Arora's undeclared reliance on generative artificial intelligence in preparing the document, contrary to the Court's practice direction entitled The Use of Artificial Intelligence in Court Proceedings, dated May 7, 2024. The Court warned that presenting erroneous AI-generated content can mislead the Court, waste scarce judicial resources, put a litigant's case at risk, cause reputational damage, and lead to sanctions.

Applying the legal test from Forest Ethics Advocacy Association v National Energy Board, 2014 FCA 88, the Associate Judge found the proposed second affidavit failed at every stage of the analysis. On admissibility, the evidence was not established to have been in the actual possession of and considered by the CHRC when it made its screening decision, and it did not fall within any recognized exception to the general rule against admission of new evidence on judicial review — it was not a neutral and uncontroversial orienting summary of the evidence before the CHRC, but rather was intended to serve as additional evidence that supplements the record and was plainly meant to encourage the Court to form its own views of the factual merits. Nor was the Court persuaded that the evidence related to alleged procedural defects by the CHRC in making the screening decision, as the second affidavit asserted a litany of alleged procedural defects made by past decision-makers seemingly reaching back to 2016. The affidavit also consisted largely of impermissible opinion, argument, and conjecture contrary to Rule 81. On relevance, the evidence 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 that was the subject of the screening decision. On the interests of justice, apart from two exhibits, the evidence adduced in the second affidavit significantly pre-dated the first affidavit — the vast majority of the evidence was available to Arora and could have been included in the first affidavit with the exercise of diligence. The Rule 312 Motion was dismissed, and CN was awarded costs fixed at $1,000, inclusive of disbursements and taxes.

Arora's appeal under Rule 51 and the April 15, 2026 decision

Arora appealed the January 2026 Order by filing a motion under Rules 51 and 369 on February 9, 2026. Justice Alan Diner, in an Order issued on March 2, 2026, granted an extension of time to serve and file the motion and deemed the notice of motion to be the Rule 51 motion appealing the January 2026 Order, but dismissed Arora's requests for a stay of the January 2026 Order and the request to stay or extend the requirement to serve and file the Applicant's record. The merits of the Rule 51 appeal then came before Justice Patrick Gleeson.

Arora raised two issues on appeal: whether the Associate Judge erred in refusing to admit the revised second affidavit and the reply affidavit, and whether there had been a breach of procedural fairness due to what he characterized as "adverse credibility-related observations" made without providing notice or an opportunity to respond. The applicable standard of review was correctness for questions of law, and palpable and overriding error for questions of fact and questions of mixed fact and law for which there are no extricable questions of law — a "highly deferential standard" that requires, metaphorically, that "the entire tree must fall."

Justice Gleeson was not persuaded the Associate Judge erred on either issue. On the refusal to admit the affidavit evidence, the Associate Judge correctly identified and applied the legal tests from Amgen and Forest Ethics, engaged in a comprehensive analysis supported by clear reasons, and concluded the evidence was inadmissible, non-compliant with Rule 81, not relevant to an issue before the court on judicial review, and available at the time of filing the Rule 306 affidavit. Any of these grounds was sufficient to dismiss the Rule 312 Motion. The Court rejected Arora's submission that a different legal standard should apply because he is self-represented, confirming that the law is the same whether a party is represented by counsel or represents themselves. On procedural fairness, the Court found the Associate Judge did not draw a negative credibility inference from Arora's failure to verify or declare the use of generative AI, nor was there any basis to argue Arora's conduct influenced the Associate Judge's exercise of discretion. The Associate Judge appropriately noted her concerns, detailed the reasons for those concerns, identified the possibility of sanctions or other consequences for the Applicant's undisputed non-compliance with the AI Practice Direction, but imposed no such consequences.

The ruling and overall outcome

Justice Gleeson dismissed Arora's Rule 51 motion in its entirety on April 15, 2026, upholding the Associate Judge's January 2026 Order. The Court also reminded Arora of the importance of accurate written submissions, noting that a party's unverified and inaccurate reliance on jurisprudence and AI-generated submissions is not limited to potential prejudice to the opposing party — inaccuracy also misleads the Court and results in the waste of scarce resources, both judicial and those of the opposing party. CN, represented by Stephanie Lewis of Dentons Canada LLP, was the successful party across both decisions. CN was awarded fixed costs of $1,000, inclusive of disbursements and taxes, on the Rule 312 Motion, and an additional $600, inclusive of disbursements and taxes, on the Rule 51 appeal motion, both payable by Arora to CN in any event of the cause.