Iness v. Canada Mortgage and Housing Corporation and Caroline Co-operative Homes Inc. et al. [Indexed as: Iness v. Canada Mortgage and Housing Corp.]
62 O.R. (3d) 255
[2002] O.J. No. 4334
Docket Nos. M29024 and M29044 (M28836)
Court of Appeal for Ontario,
Weiler J.A. (in chambers)
November 15, 2002
Appeal -- Application for leave to appeal order of Divisional Court to the Court of Appeal -- Applicant filing affidavits on the public importance of the legal issue raised by the appeal -- Court of Appeal may grant leave for applicant to file affidavits about public importance -- Affidavit should be limited to factual information and not express opinions about the legal issue to be decided -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(a) -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.03.1 [page256]
EI filed a complaint with the Ontario Human Rights Commission against Caroline Co-operative Homes Inc. (the "Co-op"), which operated pursuant to an agreement with Canada Mortgage and Housing Corporation ("CMHC"). Her complaint was filed because the Co-op had changed its policy about charging rent as a result of a directive from CMHC. She alleged that the policy discriminated against those receiving provincial social assistance. A Board of Inquiry was appointed and, despite CMHC's argument that as a federal Crown corporation, it was not subject to provincial human rights legislation, it was added as a party. CMHC sought judicial review, and the Divisional Court granted its application and quashed the Board's order. Under s. 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, EI sought leave to appeal to the Court of Appeal. In support of her application for leave, she filed two affidavits in which the deponents described the public importance of the legal issues raised by the appeal. CMHC moved to have the affidavits struck out.
Held, the motion should be dismissed save that certain paragraphs of the affidavits should be struck out.
On an application for leave to appeal to the Court of Appeal, pursuant to s. 6(1)(a) of the Courts of Justice Act, affidavit material about the public importance of the legal issues raised on the appeal cannot be filed as of right. However, the court may grant leave to file such an affidavit in appropriate circumstances. The affidavit must be relevant to the issue of public importance, and the extent of the impact of the court's decision is one factor to be considered in determining the question of public importance. Affidavits or portions of them that simply express opinions on the very issues raised may be struck, and the affidavit should limit itself to factual information. Except for several paragraphs, the affidavits in the immediate case were proper in form and in their content. The improper paragraphs should be struck out, but leave should be granted to adduce the remainder of the two affidavits as evidence of the public interest. In this case, cross- examination on the affidavits would not be useful and leave to cross-examine should be denied, although CMHC may file contradictory affidavit evidence in response to those portions of the affidavit that it submits are inaccurate.
In the future, a party seeking to adduce evidence on the matter of public importance should file a motion to admit evidence on the matter and a supporting affidavit with the application for leave to appeal. Any response to the affidavit should be filed with the responding material on the leave motion. The panel hearing the application for leave to appeal will consider the motion to admit evidence when considering the leave application. Motions to strike affidavits and motions to cross-examine on such affidavit material may be made to the chambers judge.
MOTION to strike affidavits filed on an application for leave to appeal to the Court of Appeal from a decision of the Divisional Court.
Cases referred to Ballard Estate v. Ballard Estate, [1991] S.C.C.A. No. 239; Canada Mortage and Housing Corp. v. Iness, [2002] O.J. No. 2761 (Quicklaw) (Div. Ct.); Markevich v. Canada, [2001] S.C.C.A. No. 371; R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22 (sub nom. Palmer and Palmer v. R.); Sault Dock Co. v. Sault Ste. Marie (City), 1972 572 (ON CA), [1973] 2 O.R. 479, 34 D.L.R. (3d) 327 (C.A.); Thomas Furniture Ltd. v. Borooah (2002), Docket M28743; United Glass and Ceramic Workers of North America (AFL-CIO-CLC), Local 246 and Dominion Glass Co. Ltd. (Re), 1973 459 (ON CA), [1973] 2 O.R. 763, 35 D.L.R. (3d) 247 (C.A.) Statutes referred to Canadian Human Rights Act, R.S.C. 1985, c. H-6 Constitution Act, 1867 (U.K.), 1867, c. 3, s. 91(1A) [page257] Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(a) Human Rights Code, R.S.O. 1990, c. H.19 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 39.01, 61.03 [as am.], 61.03.1 Rules of the Supreme Court of Canada, SOR/2002-156, s. 25(1)(b) Court of Appeal Rules, B.C. Reg. 297/2001, rule 7, Form 4
Raj Anand and Marie-Andrée Vermette, for respondent (moving party). Alan L.W. D'Silva and Sophie Vlahakis, for the applicant (responding party). Margaret Leighton, for the Board of Inquiry.
Introduction
1WEILER J.A. (in Chambers): -- Eleanor Iness has brought an application for leave to appeal a decision of the Divisional Court. In support, she has filed two affidavits on the public importance of the legal issue raised. The [Canada] Mortgage and Housing Corporation ("CMHC") has brought a motion to strike these affidavits from the record, leaving this court to decide the narrow issue of whether or not affidavit evidence may be filed on the question of public importance of the appeal.
Background
2The background to the motion is as follows. Iness filed a complaint with the Ontario Human Rights Commission (the "Commission") on May 15, 1995 against Caroline Co-operative Homes Inc. (the "Co-op"), a rent-geared-to-income co-op operating pursuant to an agreement with CMHC. Up until that time, Iness, and all other persons living at the Co-op, had been charged rent geared-to-income amounting to 25 per cent of income regardless of its source. On January 1, 1995, the Co-op changed its policy and Iness was charged the maximum amount of her shelter allowance as rent. The result was that she now had to pay $27.50 per month toward hydro and insurance costs out of the living portion of her allowance. Other residents of the Co- op not in receipt of public assistance continued to simply pay 25 per cent of income. Iness alleged discrimination against her on the prohibited ground of receipt of provincial social assistance. A Board of Inquiry was appointed and both Iness and the Co-op sought to add CMHC as a party.
3The Co-op's position was that it was obliged to comply with a directive from CMHC stating that housing costs for members in receipt of social assistance were to be calculated in a different manner from those income tested members not in receipt of [page258] social assistance. CMHC opposed the motion to add it as a party on the basis that it is a federal crown corporation operating pursuant to federal legislation and exercising its federal spending power pursuant to s. 91(1A) of the Constitution Act, 1867 (U.K.), 1867, c. 3. As such, it claims it is not subject to provincial human rights legislation but only the Canadian Human Rights Act, R.S.C. 1985, c. H-6, which is a complete code regarding human rights in the federal sphere. On June 13, 2001, the Board of Inquiry held that CMHC was subject to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, and added CMHC as a party. CMHC sought judicial review of the Board's decision before the Divisional Court and, on July 8, 2002, the Divisional Court agreed with CMHC's position, quashing the Board's order: Canada Mortgage and Housing Corp. v. Iness, [2002] O.J. No. 2761 (Quicklaw) (Div. Ct.).
Leave to Appeal Standard
4Iness is seeking leave to appeal to this court. Under s. 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, appeals from a decision of the Divisional Court will only be granted with leave on a question that is not a question of fact alone. The possibility that there may be an error in the judgment or order sought to be appealed will not generally be a ground in itself for granting leave. Matters considered in granting leave include: (a) whether the Divisional Court exercised appellate jurisdiction (in which case the applicant for leave is seeking a second appeal) or whether the Divisional Court was sitting as a court of original jurisdiction; (b) whether the appeal involves the interpretation of a statute or regulation including its constitutionality; (c) the interpretation, clarification or propounding of some general rule or principle of law; and (d) whether the interpretation of the law or agreement in issue is of significance only to the parties or whether a question of general interest to the public or a broad segment of the public would be settled for the future: Re United Glass and Ceramic Workers of North America (AFL-CIO-CLC), [1979] 2 O.R. 763 (C.A.); Sault Dock Co. v. Sault Ste. Marie (City), 1972 572 (ON CA), [1973] 2 O.R. 479, 34 D.L.R. (3d) 327 (C.A.).
5The two affidavits filed by Iness as part of her leave motion are intended to support her position that the questions of law raised are a matter of public importance. The affidavits purport to address the number of co-ops and non-profit housing corporations that are, like the Co-op, funded by CMHC's "s. 56.1" program and to further describe how that funding program works. CMHC opposed the filing of the affidavits on the basis that they do not comply with the test for the admission of fresh evidence set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759 at p. 775, 106 D.L.R. (3d) 212 and it also disagrees with much of the content in the affidavits.
6Iness took the position she was entitled as of right to file the affidavits based on the endorsement of Simmons J.A. (in chambers) [page259] on August 8, 2002 in Thomas Furniture Ltd. v. Borooah, Docket M28743. Alternatively, Iness seeks leave to file the affidavits. The first question, therefore, is whether a moving party may file affidavits on a motion for leave to appeal to address the issue of public importance, and if so, whether the filing of such an affidavit is as of right or whether leave is required. If such affidavits may be filed, but only with leave, the question then becomes when leave should be granted.
7Rule 61.03.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 governs motions for leave to appeal to the Court of Appeal. Subrule 2 of rule 61.03.1 states that a motion record, factums and transcripts, if any, are to be served. The documents to be contained in the motion record are those listed in rule 61.03(2).12 The rule does not state that the motion record cannot contain any other materials. In Thomas Furniture, supra, Simmons J.A. dealt with the question whether affidavit material on the public importance of the matter could nonetheless be filed. She endorsed the record in part as follows: [page260]
I do not read rule 61.03.1 as prohibiting a party from filing evidence on a motion for leave to appeal to address whether the proposed appeal raises an issue of public importance, nor, in my view, have any authorities been filed that establish that such evidence should be prohibited.
In the motion before her, however, she held that there was no basis for concluding that the affidavit of David Butler was admissible as addressing an issue of public importance. Rather, it dealt with matters relevant to the interpretation of the by- law that could have been raised previously.
8I do not read the decision of Simmons J.A. as indicative that affidavit evidence on the question of public importance can be filed as of right. Rather, it supports the conclusion that the court may grant leave to file such an affidavit in appropriate circumstances. This conclusion is further supported by an examination of the approach taken in two other jurisdictions where the filing of such affidavit material is expressly permitted.
9The Rules of the Supreme Court of Canada, SOR/2002-156, s. 25(1)(b) expressly permit the filing of "any affidavits in support of the application for leave to appeal". No separate leave is required to file such an affidavit, though the responding party may make a motion to strike the affidavit out if it is not relevant or contains improper submissions: Ballard Estate v. Ballard Estate, [1991] S.C.C.A. No. 239. Similarly, the Court of Appeal Rules, B.C. Reg. 297/2001, rule 7 and Form 4 also envisage the filing of such affidavit material. In the absence of any rule expressly permitting the filing of an affidavit concerning the issue of the public importance of an appeal, I am of the opinion that the matter is discretionary and leave must be obtained.
Admissibility of the Affidavits
10The question therefore is whether this is an appropriate case in which to grant leave and allow the affidavits to be filed. The Palmer test is of no assistance on the issue before me; it is directed to the admissibility of fresh evidence affecting the substance of a decision as opposed to its process. The decision of the Supreme Court in Markevich v. Canada, [2001] S.C.C.A. No. 371 is much more pertinent to a motion to strike an affidavit filed in support of granting leave to appeal. Markevich implicitly states that the affidavit in question must be relevant to the issue of public importance. The extent of the impact of the court's decision is one factor to be considered in determining the question of public importance. In that case, the impact centred on a dollar figure -- the ability of the public purse to collect tax debts. Affidavit evidence filed by the appellant seeking leave to appeal stated that significant amounts of taxes would become uncollectable if the judgment of the lower court was allowed to [page261] stand. This was held to be entirely relevant to the issue of the national importance of the legal question raised, and the affidavit evidence was allowed. In addition, the request of the respondent on appeal for leave to examine the individual who had filed the affidavit was rejected. All the Supreme Court wanted to know was that a "substantial amount may be involved". They did not wish to become bogged down in superfluous debate over the exact figure.
11The affidavit evidence before me similarly establishes the wide impact of the Divisional Court's decision. While it focuses on the number of persons affected rather than a dollar value, the affidavits are relevant in that they go to the importance of the court's decision on the broader public beyond the parties involved directly. Relevance, however, is not the only question to consider when granting leave to file affidavits on the issue of public importance. The Supreme Court struck out affidavits in Ballard Estate, supra, when they simply expressed matters of opinion on the very issues raised on appeal. Ballard Estate contrasted this opinion evidence to "statistical data as to the effects of a decision [which] may be of great assistance". Any affidavit submitted on the issue of public importance should limit itself to factual information. Otherwise, expert legal opinion to the effect that the issue between the parties raises questions of public importance is inappropriate as this is the very issue for the court to decide on the leave application.
12An examination of the affidavits of J. David Hulchanski and Mary Todorow reveals that, for the most part, they confine themselves to statistical data. While CMHC claims that the affidavits go to the substantive issues in this matter by discussing CMHC's role in the housing industry and funding, these paragraphs are incidental to the main purpose of the affidavit, namely, a demonstration of the wide impact that the court's decision will have. The fact that this evidence was available to counsel at the time of the initial motion before the Board of Inquiry is irrelevant, it is only at this stage that Iness must demonstrate the public importance of the issues raised.
13CMHC further objects to the affidavits on the basis of form, claiming that they do not meet the standard of rule 39.01. On the whole, both affidavits are acceptable to the court in that each affiant states that they have "knowledge of the matters herein deposed": Affidavit of J. David Hulchanski at para. 2, Affidavit of Mary Todorow at para. 3. Hulchanski's affidavit, however, steps over the line into opinion in para. 9 where he states, in part"Protection from discrimination in access to subsidized rental units is of critical importance for disadvantaged [page262] groups in Ontario, including social assistance recipients." Paragraph 10 also deviates from an analysis of the number of people affected by the CMHC and the structure of its programs. Paragraph 14 of Todorow's affidavit similarly crosses into opinion when she states that "CMHC is the author of the shelter component requirement, which is potentially discriminatory under the [Ontario Human Rights] Code." I would therefore strike paras. 9 and 10 from the affidavit of J. David Hulchanski and para. 14 of the affidavit of Mary Todorow, but grant leave to adduce the remainder of these two affidavits as evidence as to the public interest.
14Finally, CMHC disagrees with some of the statements in the affidavits. It wishes to cross-examine on them and also wishes to file affidavit evidence. I cannot see that cross- examination on the affidavits will serve a useful purpose. As in Markevich, the exact number of persons affected by the decision is not pertinent. It is the general picture which is important. Consequently, leave to cross-examine on the affidavits is denied. CMHC is at liberty to file contradictory affidavit evidence in response to those portions of the affidavit that it submits are inaccurate.
Future Procedure
15In the future, it seems to me that the party seeking to adduce evidence on the matter of public importance should file a motion to admit evidence on the matter and a supporting affidavit with the application for leave to appeal. Similarly, any response to the affidavit should be filed with the responding materials on the leave motion. The panel hearing the application for leave to appeal would then consider the motion to admit the evidence on the issue of public importance when considering the leave application. Motions to strike affidavits and motions to cross-examine on such affidavit material would properly be made to the chambers judge.
Disposition
16CMHC's motion for an order striking out the affidavits of Hulchanski and Todorow is therefore dismissed, but only in part. Paragraphs 9 and 10 of the affidavit of J. David Hulchanski and para. 14 of the affidavit of Mary Todorow shall be struck out, and leave to admit the remainder of these affidavits is granted.
17Both sides have agreed to bear their own costs of this motion.
Order accordingly.