Ontario Superior Court of Justice, Divisional Court

Court File No. D-219-99

Date: 2000-01-11

Southey, Kozak and Lederman JJ.

Counsel:

Timothy S.B. Danson, for applicants, Ontario Federation of Anglers & Hunters, and C. Davison Ankney.

Robert E. Charney and Hart Schwartz, for respondents, The Queen in right of Ontario as represented by the Ministry of Natural Resources and the Hon. John Snobelen.

Lederman J. (Southey J. concurring):—

Introduction

Introduction

1There is pending an application for judicial review challenging the validity of Regulation 670/98, Open Seasons — Wildlife, as amended by Regulation 88/99 made by the Minister of Natural Resources pursuant to the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41 ("FWCA"). This regulation terminated the spring open hunting season (April 15-June 15) for black bears in Ontario.

2Among the interlocutory proceedings that have been brought, the respondents moved before Mr. Justice Yates seeking an Order:

i) quashing the Notice of Examination to the Honourable John Snobelen, Minister of Natural Resources, and the Summons to Witness to the Honourable Mike Harris, Premier of Ontario;

ii) striking out certain portions of the applicants' affidavit evidence; and

iii) restricting the applicants to three expert black bear biologists. [3] The applicants brought a cross-motion to quash the respondents' motion to strike out portions of the applicants' affidavits or, alternatively, for an order that the applicants' motion be reserved to the full panel hearing the merits of the application for judicial review.

3On March 24, 2000, Yates J.:

i) quashed the Notice of Examination and Summons to Witness;

ii) dismissed the applicants' cross-motion and ordered that the respondents' motion to strike out portions of affidavits should be heard prior to the hearing of the judicial review application on the merits and adjourned the motion to a single judge of the Divisional Court; and

iii) ordered that the applicants be restricted to four black bear expert witnesses.

4The applicants now bring this motion before a panel of the Divisional Court pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43. They seek to set aside the Orders of Yates J., which were made by him, sitting alone, to deal with motions. The applicants seek an Order requiring that the Honourable John Snobelen and the Honourable Mike Harris attend for examination pursuant to the Notice of Examination and Summons to Witness; an Order quashing the respondents' motion to strike out certain paragraphs of the applicants' affidavits, or alternatively, adjourning the said motion to the panel of judges hearing the judicial review application upon its merits; and an Order permitting the applicants to rely on six black bear biologist experts, or otherwise deferring the determination of the number of black bear experts to the panel of judges hearing the judicial review application on its merits.

The Examination of the Minister and the Premier

The Examination of the Minister and the Premier

5The examinations are sought pursuant to rule 39.03, permitting the examination of a person as a witness before the hearing of a pending motion or application. Ministers of the Crown do not enjoy any special protection or exemption from testifying under rule 39.03: see Ontario (Attorney General) v. Dieleman (1993), 1993 5545 (ON SC), 16 O.R. (3d) 39 at p. 44, 110 D.L.R. (4th) 343 (Gen. Div.), leave to appeal denied, (1993), 1993 5568 (ON SC), 16 O.R. (3d) 46, 110 D.L.R. (4th) 349 (Div. Ct.). In considering whether an examination should be permitted under this Rule, the Court will consider whether the evidence sought to be obtained from the proposed examination is relevant to any issue raised on the main application. The party seeking to conduct the examination is required to show on a reasonable evidentiary basis that the examination would be on issues relevant to the pending application and that the intended witness was in a position to offer relevant evidence. As the Supreme Court of Canada stated in Consortium Developments (Clearwater) Ltd. v. Sarnia (City), 1998 762 (SCC), [1998] 3 S.C.R. 3, 165 D.L.R. (4th) 25, at para. 45:

While courts should be slow to interfere with a party's effort to build its case, they should set aside summonses where, as here, the evidence sought to be elicited has no relevance to a live issue in the judicial review applications ...

6The courts must be cautious to ensure that a summons to witness directed to a Minister of the Crown under rule 39.03 involves a valid evidentiary basis necessary to determine a specific legal issue and is not simply for the purpose of "turning the court process into an extended battleground for extracting information pertaining to the ongoing political debate . . ." (see Ontario Teachers' Federation v. Ontario (Attorney General) (1998), 1998 14680 (ON SC), 39 O.R. (3d) 140 (Gen. Div.), at p. 148; Agnew v. Ontario Association of Architects (1987), 1987 4030 (ON SC), 64 O.R. (2d) 8 (Div. Ct.), at pp. 14-15).

7The respondents contend that the evidence sought to be elicited from Minister Snobelen and Premier Harris is not relevant to any live issue in the judicial review and, consequently, that Yates J. was correct in quashing the Notice of Examination and Summons.

8On the application for judicial review, the applicants allege that the regulation is ultra vires the FWCA because it was passed for an improper purpose and is inconsistent with the conservation or environmental purposes of the Act; that The Honourable John Snobelen in his capacity as Minister of Natural Resources exceeded his jurisdiction and declined jurisdiction in the way that he discharged his statutory authority under the FWCA in amending Regulation 670/98 as it relates to the spring bear hunt; and that Regulation 88/99 is inconsistent with and contrary to ss. 2(b) and 7 of the Canadian Charter of Rights and Freedoms and, as such, is of no force and effect.

9In coming to the decision to quash the Notice of Examination and Summons, Mr. Justice Yates made the following findings:

In analyzing the respective positions of the parties, based on all the evidence before me, I have come to the following conclusions:

(a) one of the purposes of the FWCA is to set and maintain ethical humane and responsible hunting practices;

(b) the Minister has the power and authority to pass the Regulation pursuant to s. 113(1) of the FWCA prescribing open or closed seasons for wildlife;

(c) it is not improper for elective [sic] representatives to consider public opinion in determining public policy. Therefore, to consider such conduct as "improper" is frivilous [sic] in the context of a judicial review application;

(d) it is neither the court's duty nor right to investigate the motives which compelled the Minister to pass a particular regulation in this situation;

(e) there is ample evidence available to the applicants, to present to a full panel of this Court, to show legislative purpose or intent without resorting to an examination of the Premier and Minister under Rule 39.03, thus interfering with the privilege accorded our elected representatives under the law.

10He, therefore, found that the Notice of Examination and Summons are an abuse of process and they were quashed.

11While I believe that Yates J. erred in concluding that elected representatives have any testimonial privilege under the law, there is ample authority to justify Yates J.'s conclusion that legislative purpose or intent of the FWCA can be determined by an examination of the words of the statute and regulation themselves, and if necessary, by resort to such extrinsic evidence as legislative debates if there is any ambiguity. However, it has often been held that the personal motives of a Minister in passing a regulation are irrelevant and of no value in determining legislative or regulatory purpose, or, more precisely, whether the stated purpose of the regulation is within the scope and purpose of the enabling legislation and the regulatory powers given to the Minister under the Act: see Thorne's Hardware Ltd. v. The Queen, 1983 20 (SCC), [1983] 1 S.C.R. 106, 143 D.L.R. (3d) 577 sub nom. Canada v. Thorne's Hardware Ltd.; Delisle v. Canada (Deputy Attorney General), 1999 649 (SCC), [1999] 2 S.C.R. 989, 176 D.L.R. (4th) 513, at para. 17; Ontario Teachers' Federation v. Ontario (Attorney General), 2000 14733 (ON CA), [2000] O.J. No. 2094 (C.A.), at paras. 31-34 [now reported 188 D.L.R. (4th) 333].

12Thus, there would seem to be little basis for permitting the examination of the Minister and the Premier to ascertain their motives, if the issue was solely whether the regulation fell within any of the purposes of the FWCA, namely whether hunting ethics are within the purview of the FWCA.

13However, the applicants contend that, additionally, there has been a complete failure by the Minister to exercise any discretion whatsoever in the passing of the regulation. They allege that the decision to cancel the spring bear hunt was made unilaterally by the Premier for reasons of political expediency and that he directed the Minister to cancel the hunt. As a result, the applicants allege that the Minister merely followed the dictate of the Premier and did not exercise any independent judgment or consider any relevant factors in passing the regulation.

14In support of this allegation, the applicants point to the following evidence:

1. The Government of Ontario undertook an extensive public consultation process over many years wherein all of the substantive issues concerning the spring bear hunt were exhaustively examined, debated and researched;

2. The Fish and Wildlife Conservation Act, 1997 received royal assent on December 18, 1997. It was proclaimed in force approximately one year later on January 1, 1999 and the corresponding regulations regarding hunting seasons, co-released at the same time, contained spring open season for black bears;

3. Mr. Robert Schad and the Schad Foundation are well-known animal rights activists who sought the cancellation of the spring bear hunt. On October 7, 1998 a meeting was held among representatives of the Schad Foundation, the Ontario Federation of Anglers and Hunters ("OFAH"), Northern Ontario Tourist Outfitters Association ("NOTO") and the Deputy Minister of Natural Resources, Mr. Ron Vrancart. In the supplementary affidavit of C. Davison Ankney, a Director of OFAH, it is alleged that Mr. Vrancart stated clearly and unequivocally that the Minister wanted OFAH to know that there would be no changes to the spring bear hunt unless both OFAH and NOTO agreed with the changes.

4. Two weeks before the proclamation of the FWCA, on December 17, 1998, The Honourable John Snobelen, Minister of Natural Resources, stated in a letter that there was no basis to cancel the spring bear hunt. He specifically stated:

The spring is, in many ways, the best time to hunt bears because it tends to target males. Hunting during the spring reduces the chance of hunters encountering female bears with cubs because they are the last to emerge from their winter dens, and their travel and home ranges are very restricted while the cubs are young and vulnerable.

5. There is affidavit evidence that Mr. Schad committed $2,000,000 to a campaign to end the spring bear hunt. There is also evidence that he and the International Fund for Animal Welfare had launched a campaign to defeat conservative MPPs who were elected by small margins or in swing ridings during the last election.

6. It is not denied that Mr. Schad met with the Premier on January 5 or 7, 1999.

7. In the affidavit of Jim Grayston, the executive director of NOTO, para. 25, the following statement is made:

On the weekend of January 8, 1999, Roger Little [sic], our past-president of NOTO was contacted directly by Premier Mike Harris. Mr. Little [sic] was advised that the spring bear hunt was over and that it would be over this spring with an announcement being publicized within a couple of weeks. Roger Little [sic] contacted me on Monday, January 11th at 8:30 a.m. to advise me of this information.

8. On January 12, 1999, the Premier received the Premier's Briefing Note entitled "Implementation Plan for Closing the Spring Black Bear Hunt".

9. On January 14, 1999, Hugh Carlson, president of NOTO, wrote to Mr. Stewart Braddick, Office of the Premier of Ontario. In the letter, Mr. Carlson made the following comments:

I am writing to you today on behalf of the Board of Directors of the Northern Ontario Tourist Outfitters Association (NOTO). I have been provided your name by Roger Liddle, NOTO Past President, as the contact in the Premier's office with regard to the issue of the status of the spring bear hunt in Ontario.

Last night in a special Board of Directors meeting, Roger informed our Board of his understanding of the Premier's intention to end Ontario's spring bear hunt prior to the 1999 spring hunt.

The NOTO Board of Directors has requested that our Association receive an immediate meeting with the Premier to discuss this issue before any announcements are made. They are very concerned that such a decision has been made by the Premier without any direct consultation with our Association.

A decision to end the spring bear hunt would have tremendous ramifications for the resource-based tourism industry.

15NOTO received no response to this letter.

10. On January 15, 1999, the Ministry of Natural Resources issued a news release headed "Government to End Spring Bear Hunt". It includes the following statements:

Natural Resources Minister John Snobelen today announced that the government intends to end the spring bear hunt in Ontario this spring.

The government made the decision to move to end the spring bear hunt because it will not tolerate cubs being orphaned by hunters mistakenly shooting mother bears in the spring ...

[T]he Minister has directed MNR staff to post a notice of intention on the Environmental Bill of Rights registry decision ...

11. Wildlife population and habitat management activities are subject to exemption Order MNR-42 made under the Environmental Assessment Act, R.S.O. 1990, c. E.18, and in accordance with that Order, the Ministry of Natural Resources, on January 21, 1999, gave notice of the proposal to end the Ontario spring bear hunt by way of a province-wide news release. The Ministry of Natural Resources thereby invited comments and information regarding the spring bear hunt for a period of 30 days, until February 20, 1999.

12. 64% of the responses received pursuant to the notice were in favour of maintaining the spring bear hunt and opposed to its cancellation.

13. On March 4, 1999, Regulation 670/98 was amended by Regulation 88/99, which deleted the spring open season for black bear (April 15 to June 15) from the open season table.

16In order to supplement this evidence, the applicants have also brought a motion before us to introduce certain newspaper articles into evidence for the purpose of establishing a context and to show that neither the Progressive Conservative caucus, nor the Ministry of Natural Resources advisory boards and committees were consulted about the decision to terminate the spring bear hunt and that the decision came directly from the Premier. Even though characterized as "contextual framework" evidence rather than hearsay, in these circumstances it amounts to the same thing and carries with it all the dangers articulated by Binnie J. in Public School Boards' Association of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44 at p. 52, 182 D.L.R. (4th) 561:

2. The Newspaper Articles

I held in the previous order that the two newspaper articles sought to be adduced by the PSBAA do not constitute "legislative fact". The two columns represent the opinion of two individuals writing in daily newspapers who may or may not have the underlying facts straight and whose opinion may or may not be valid. The authors cannot be cross-examined. The contents are apparently controversial. No basis has been made out by the applicants for admission of this material. It will therefore be rejected.

17For these reasons, such evidence is not admissible. Moreover, because this evidence is not new and could have been readily put before Yates J., the applicants' motion to introduce it is dismissed.

18The applicants allege, nevertheless, that based on admissible evidence, as set out in para. 15 of these reasons, the explanation for the sudden and radical change in position by the government with respect to the spring bear hunt was based on pure political expediency and not in response to any pressing and public concern about the welfare of orphaned cubs arising from accidental shooting of female bears in the spring. It is alleged that as a result of the meeting between Robert Schad and Premier Harris, the Premier personally made the decision to end the spring bear hunt and directed the Minister to reverse his own and his ministry's position and cancel the spring bear hunt. They allege that the posting of a notice under the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, and seeking further consultation for 30 days was a complete sham as the decision to cancel the spring bear hunt had clearly been made by the Premier in early January of 1999.

19In this vein, the applicants are alleging that there is an appearance that the possessor of the discretion did not actually exercise it but rather allowed himself to be dictated to and blindly accepted the Premier's decision. In such circumstances, the applicants submit that the ministerial decision is otherwise inexplicable and amounts to an abuse of discretion: see Apotex Inc. v. Alberta, [1996] A.J. No. 281 (Q.B.) [reported 1996 10361 (AB QB), 66 C.P.R. (3d) 180].

20Yates J. did not consider whether these circumstances develop a sufficient evidentiary base to permit an examination of the Premier and the Minister. It is specifically alleged that the Minister made no independent decision in the exercise of his discretion. That would, if true, clearly be an abuse of discretion and would make the regulation subject to challenge on that basis alone. I am of the view that the circumstances adduced in evidence make the evidence of the Premier and the Minister relevant to this issue. It is not an allegation plucked out of mid-air, but is one based upon the speed with which a complete reversal in policy took place upon the involvement of the Premier. The Minister and the Premier are the persons in the best position to address the matter in issue.

21Since there, in fact, is a live issue to which the evidence of the Premier and Minister would be relevant, an Order should go setting aside the Order of Yates J. quashing the Notice of Examination to the Minister and Summons to the Premier so that the applicants may be permitted to examine them under rule 39.03. Such examination is to be limited to the sole issue of whether the Minister made his own decision in exercising his discretion to pass the regulation or whether he was merely directed to pass the regulation by the Premier without the exercise of any independent discretion.

Motion to Strike Out Certain Portions of Affidavits

Motion to Strike Out Certain Portions of Affidavits

22The applicants allege that by filing responding material, the respondents have taken a fresh step and thereby waived any complaint that they may have with any irregularities contained in the affidavit material.

23Rule 2.02 reads as follows:

2.02 A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with leave of the court,

(a) after the expiry of a reasonable time after the moving party knows or ought reasonably to have known of the irregularity; or

(b) if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity.

24Holmested and Watson, Ontario Civil Procedure, Vol. 2 (Toronto, Carswell, 1993) at p. 2-15, explain the principle behind this rule as follows:

Rule 2.02 requires a party to exercise reasonable diligence in raising objections to an opponent's failure to observe procedural requirements. Inordinate delay before objecting or the taking of further steps after obtaining knowledge of an irregularity are generally indicative of a lack of seriousness about the objection, will likely lull the opponents into a false sense of security, or simply represent dilatory tactics which are to be discouraged. The sanction imposed is waiver unless leave of the court is obtained.

25The applicants' fully executed affidavit material was delivered on October 15, 1999. On November 1, 1999 the respondents advised the applicants that they were going to bring a motion to strike out portions of the affidavits and on four separate occasions sought convenient dates for the motion from the applicants. No dates were forthcoming. Finally, the respondents set the motion down on the first available date that could be provided by the Court which was early March 2000. They, in fact, provided the applicants with a draft notice of motion, detailing each of the paragraphs to be challenged on February 8, 2000 and provided the notice of motion itself on February 11, 2000.

26In agreeing to a timetable for proceedings as confirmed in a letter between counsel dated October 27, 1999 and specifically agreeing to a return date for the application for judicial review on the merits during the week of June 12, 2000, there is no agreement that the only motions that would be brought would be with respect to those pertaining to cross-examinations.

27In these circumstances, the respondents indicated early on and throughout that they took objection to certain portions in the affidavit material and intended to bring a motion to expunge them. The filing of responsive material in order to expedite proceedings did not amount to a fresh step in this situation. Thus, Yates J. was correct in dismissing the applicants' cross-motion.

28The applicants also contend that this motion should not be heard by a single judge of the Divisional Court, but rather by the panel hearing the judicial review application. Although this argument might have greater force if the basis for the attack was just one of relevance, it has no merit in circumstances such as these where the challenge is on the basis that the paragraphs in question constitute hearsay, improper opinion evidence and legal argument. These are matters that should be determined before the hearing of the application for judicial review and Yates J. was correct in deciding that this should be determined in a preliminary fashion before a single judge for purposes of expediency and the interests of justice. Accordingly, this Order of Yates J. will stand.

Number of Experts

Number of Experts

29The applicants contend that Yates J. erred in the exercise of his discretion under s. 12 of the Evidence Act, R.S.O. 1990, c. E.23, in not allowing the applicants to tender the evidence of six black bear biologist experts, but rather restricted them to four. They assert that the number of experts is significant because there is such a limited number of people with this expertise in the world. No evidentiary material was filed in support of this proposition, however.

30The affidavits of the six experts contain virtually identical wording and conclusions. There is nothing unique or, indeed, different stated by each expert. In these circumstances, I do not see that there was any error committed by Yates J. in allowing a total of only four experts.

31Moreover, on an application of this nature, it is best that the determination of the number of experts be made by a single judge and not by the panel hearing the judicial review application. An early determination of this issue allows for the parties to cross-examine on the affidavits of only those experts whose evidence will be received on the return of the judicial review application. In the interests of costs, efficiency and in furtherance of the expeditious proceeding of the application on its merits, I see no error in principle by Yates J. in deciding this issue and not reserving it for the panel. This aspect of the applicants' motion is, therefore, dismissed.

Costs

Costs

32By agreement of counsel, costs of this motion are reserved to the panel hearing the judicial review application.

Dissenting Reasons

33Kozak J. (dissenting):—I have had the opportunity of reading the detailed and carefully prepared reasons for decision of Lederman J., and with the utmost respect I am unable to agree with his conclusion that the applicants have established a sufficient evidentiary basis so as to warrant the examination of the Premier and the Minister of Natural Resources pursuant to rule 39.03 of the Rules of Civil Procedure. In my view the applicants have failed to meet the initial required evidentiary threshold from either an administrative law or Charter argument standpoint and Yates J. correctly quashed the Notice of Examination and Summons to Witness as an abuse of process. In all other respects, I concur in the decision of Lederman J.

34Courts should be extremely wary of being dragged into the political arena and interfering with a democratic legislative process in cases where a regulation has been passed in accordance with the purview of the enabling act. Such unnecessary intrusions of the courts into politics has been stated to imperil the legitimacy of the judiciary whenever judges plunge needlessly or recklessly into the political thicket. In this regard see Thorne's Hardware Ltd. v. The Queen, 1983 20 (SCC), [1983] 1 S.C.R. 106, 143 D.L.R. (3d) 577 sub nom. Canada v. Thorne's Hardware Ltd., where the Supreme Court of Canada confirmed that it is neither the court's duty nor right to investigate the motives which impelled cabinet to pass a particular regulation. The court was addressing an Administrative Law issue and did acknowledge that an examination of motives might be appropriate in a case where the impugned conduct is particularly egregious.

35In arguing that Regulation 670/98, Open Seasons — Wildlife, as amended by Regulation 88/99 is ultra vires, the applicants first of all contend that the regulation was passed for an improper purpose. The merits of this argument are somewhat paled bearing in mind that the motives of a Minister in passing a regulation are irrelevant where the stated purpose of the regulation is within the body and scope of the enabling legislation and regulatory powers under the Act. The more compelling argument of the applicants is that the Minister of Natural Resources exceeded his jurisdiction and declined jurisdiction in the way that he discharged his statutory authority under F.W.C.A., and that Regulation 88/99 is inconsistent with ss. 2(b) and 7 of the Canadian Charter of Rights and Freedoms. In seeking to examine the Premier and the Minister the applicants submit that these two senior government officials because of their direct involvement are the only persons through whom an accurate evidentiary record of the circumstances surrounding the passing of the regulation can be elicited.

36Although members of the legislature are protected by way of parliamentary privilege from civil or criminal liability, as a result of anything said during parliamentary debate, such members including Ministers of the Crown and the Premier are not immune and do not enjoy any special protection or exemption from testifying under rule 39.03. This does not mean that every allegation of improper purpose or bad faith will compel the examination of a Minister under rule 39.03 of the Rules of Civil Procedure. Nor does the raising of a broadly based Charter argument that the cancellation of the spring bear hunt violates the applicants' s. 2(b) and s. 7 Charter rights, result in the automatic right of a rule 39.03 examination for the purpose of a s. 1 analysis. Section 2(b) and s. 7 Charter rights are not inalienable rights. They are subject to modification and limitation. It is not always necessary to have the testimony of an individual member of the legislature with respect to the constitutional validity of legislation. Resort to Hansard, parliamentary debate and the parliamentary question period, as well as the express wording of the statute and the regulation are in most cases sufficient to resolve the question of constitutional validity.

37In considering whether an examination of the Premier and the Minister under rule 39.03 of the Rules of Civil Procedure should be permitted the court is called upon to consider whether the evidence sought to be obtained from the proposed examination is relevant to the issues raised in the main application. The onus is on the party seeking to conduct such an examination to show on a reasonable evidentiary basis that the examination is necessary to determine specific legal issues and is not for the purpose of turning the court process into a fishing expedition or an extended ongoing political debate. See Ontario Teachers Federation v. Ontario (Attorney General) (1998), 1998 14680 (ON SC), 39 O.R. (3d) 140 (Gen. Div.); Consortium Developments (Clearwater) Ltd. v. Sarnia (City), 1998 762 (SCC), [1998] 3 S.C.R. 3, 165 D.L.R. (4th) 25; Re Canada Metal Co. and Heap (1975), 1975 675 (ON CA), 7 O.R. (2d) 185, 54 D.L.R. (3d) 641 (C.A.); Agnew v. Ontario Association of Architects (1987), 1987 4030 (ON SC), 64 O.R. (2d) 8 (Div. Ct.), and Ontario (Attorney General) v. Dieleman (1993), 1993 5545 (ON SC), 16 O.R. (3d) 39, 110 D.L.R. (4th) 343 (Gen. Div.), with leave to appeal being denied at (1993), 1993 5568 (ON SC), 16 O.R. (3d) 46, 110 D.L.R. (4th) 349 (Div. Ct.).

38The evidentiary basis relied upon by the applicants is set out in para. 15 of the reasons of Lederman J. It consists of a series of sequential events beginning December 18, 1997 when F.W.C.A. received Royal Assent, and culminating on March 4, 1999 with Regulation 88/99 which deleted the spring black bear hunt. More particularly:

(1) On October 7, 1998 the Deputy Minister of Natural Resources stated to O.F.A.H., N.O.T.O., and the Schad Foundation that there would be no changes to the spring bear hunt unless both O.F.A.H. and N.O.T.O. agreed to the changes.

(2) On December 17, 1998 some two weeks before the proclamation of F.W.C.A., the Minister of Natural Resources stated that in many ways spring is the best time to hunt bears because it tends to target males.

(3) On January 5 or 7, 1999 Mr. Robert Schad a dedicated animal rights activist who sought cancellation of the spring bear hunt and was prepared to financially campaign in his cause, met with the Premier.

(4) On the weekend of January 8, 1999, Mr. Roger Little [sic] of N.O.T.O. was contacted directly by the Premier and advised that the spring bear hunt would be over this spring with a public announcement to be made within a couple of weeks.

(5) On January 12, 1999 the Premier's Briefing Note entitled "Implementation Plan for Closing the Spring Bear Hunt" was received by the Premier.

(6) On January 15, 1999, the Ministry of Natural Resources issued a news release entitled "Government to end spring bear hunt", which included an announcement by John Snobelen the Minister of Natural Resources that the government decided to end the spring bear hunt this spring because it will not tolerate cubs being orphaned by hunters mistakenly shooting mother bears in the spring.

(7) The Notice of proposal for the regulation closing the spring bear hunt was placed on the E.B.R. Web site on January 21, 1999 and invited comments between January 21, 1999 and February 20, 1999.

(8) Sixty-four percent of the responses received were opposed to the cancellation of the spring bear hunt.

(9) On March 4, 1999 the Minister of Natural Resources proceeded to issue a direction under the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41, terminating the spring bear hunt.

39On the basis of the factual allegations of the applicants as set out above, can it be said to be an abuse of process for the applicants to examine the Minister and the Premier in order to establish that the decision to cancel the spring bear hunt was made by the Premier and not the Minister and that the Premier dictated to the Minister that the spring bear hunt be terminated?

40In my view the conclusionary statement by the applicants that the Minister did not make an independent decision in the exercise of his discretion and that it was the Premier who actually directed the Minister to cancel the hunt is a far-reaching assertion that is not supported by any of the individual or collective factual allegations when tested by the process of legal reasoning. The alleged evidentiary facts simply do not possess sufficient probative value in that they do not tend to prove the matter sought to be proved and accordingly the Premier and the Minister should not be subjected to a rule 39.03 examination to explain the government's motives, policy considerations and good faith in the passing of Regulation 88/99.

41To begin with, it is not uncommon for a government to change its mind and to effect a sudden turnabout in policy depending upon the sway of public opinion. Nor is it unusual for a Premier to have direct contact with the head of influential associations or animal rights groups so as to gain valuable input as to public opinion on contemplated regulatory policy. To suggest from the alleged facts that the cancellation of the spring bear hunt was an unilateral decision of the Premier in that he either coerced or intimidated the Minister into passing Regulation 88/99 for the sake of political expediency is not only an unreasonable inference but it is also unrealistic and not in keeping with the disclosed political process. The proposed examinations appear to be more geared towards prolonging the ongoing political debate as to whether or not the spring bear hunt should have been cancelled.

42Accordingly it is my view that there is no justiciable issue to be tried in the circumstances of the political issues of this case, and that the Crown's prerogative and statutory powers should not be subject to judicial interference. Therefore the order of Yates J. wherein he quashed the Notice of Examination and Summons to Witness should not be set aside.

43Motion granted in part.