Margot Venton

The applicants brought a motion seeking leave to file seven reply affidavits in an application for judicial review concerning a decision to allow increased sulphur production at a Suncor refinery.

The respondents objected to the vast majority of the proposed reply evidence on grounds including improper case-splitting, irrelevance, and that the evidence was available earlier.

The court held that a less strict standard for reply evidence applies on an application prior to cross-examinations than at trial.

Applying this standard, the court permitted most of the reply evidence, striking only portions that were purely confirmatory, raised new issues that should have been in the main case, or repeated earlier evidence verbatim.

The applicants sought judicial review of a Ministry of the Environment decision approving an increase in sulphur production at a Suncor refinery, arguing the failure to conduct a cumulative effects assessment violated their Charter rights.

The respondents brought motions to strike the application as a collateral attack on prior approvals and to strike much of the applicants' affidavit evidence.

The applicants brought a cross-motion for a protective costs order.

The Divisional Court dismissed the motion to strike the application, finding it was not plain and obvious it would fail.

The court allowed the motion to strike evidence in part, striking improper expert opinion and unattributed hearsay, but leaving relevance determinations to the hearing panel.

The motion for a protective costs order was dismissed, as the applicants had pro bono representation and the narrow administrative issue did not meet the exceptional public importance threshold.