COURT FILE NO.: 294/03

DATE: 20050114

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

MATTAMY (CASTLEMORE) LIMITED and BARRISTER BROOK INVESTMENTS

Applicants

• and -

THE CORPORATION OF THE CITY OF BRAMPTON, THE MUNICIPAL PROPERTY ASSESSMENT AND THE ASSESSMENT REVIEW BOARD

Respondents

Richard R. Minster, for the Applicants

Kenneth G. Hood, for the Corporation of the City of Brampton

Shawn R. Douglas, for the Municipal Property Assessment

Peter D. Ruby, applicant in companion application

HEARD: January 14, 2005

JARVIS J.: (Orally)

1This is an application by the City of Brampton to strike portions of the affidavit of Robert Allen, sworn September 15, 2004. They do so on three basis:

(i) arguing that some paragraphs are in effect submissions, opinions and opinions of belief;

(ii) that some paragraphs are attempts to place due evidence not before Member Mather on March 3, 2003, in doing so create a different record;

(iii) some of the paragraphs are simply irrelevant.

2I will not repeat in detail the arguments advanced regarding each paragraph, nor will I recite the background which is adequately set out in the material found before me. Suffice it to say that it is clear to me from the notice of motion dated January 30, 2003, did not give the applicant notice or specify that in the facts to be argued were: (i) “no sworn evidence”; (2) “no opportunity to call evidence” and (iii) “no notice to dismiss”.

3It is argued that these grounds which were relied upon at the hearing of the matter and which form part of the Member’s decision and review were not communicated in any fashion to the respondent.

4The notice of motion was accompanied by four affidavits which did not raise these issues. It is argued by the applicant that there being no notice that these grounds would be raised, they were not dealt with in the initial affidavit.

5On February 27, 2003, a reply affidavit of Ida Karreman, dated February 27, 2003, was served in which the issue of “no evidence lead…specifically…no sworn evidence” was raised for the first time. Again the “no notice for dismissal” issue was not raised. There was therefore an absence of evidence on these issues before the Member and/or a failure of the city to give notice it would be relying on these grounds and/or no indication from Member Mather that she might be relying on such grounds; it’s a basis for her opinion.

6And so, on that basis that the affidavit before me is sought to be introduced to fill one or more gaps that might have existed in the evidence at the time the review was undertaken.

7In my view, these arguments gave rise to the possibility there was a denial of natural justice. I consider it necessary for there to be evidence before the panel regarding the developments before Member Brownlie and before Member Mather which might pertain to these issues. I have reviewed the affidavits in question and have had the able assistance of counsel and I have decided that the following paragraphs be struck:

(1) paragraphs 5, 6, 7 and 8 are struck on the basis that the first three contain simply the reasons of Member Mather and to that extent are redundant, while s.8 includes the opinion of the affiant which is not admissible and for that reason is struck.

(2) paragraph 11 is simply a recital of evidence and for that reason is struck.

(3) paragraph 14 is struck as it is essentially an argument which can be asserted by counsel.

(4) paragraph 17 is redundant and is struck for that reason.

(5) paragraph 18 is struck for the same reason.

(6) paragraphs 19 to 23 are struck for a variety of reasons including the fact that they are argument and also repeat Members which can be dealt by counsel from the record which exists.

(7) paragraph 26, on the basis that the deponent’s belief is irrelevant to the panel’s consideration.

(8) paragraphs 27 to 29 are struck as they are in some ways redundant.

(9) paragraph 30 is struck for redundancy.

(10) paragraphs 31, the first sentence is struck and the following two words are struck and the balance of the paragraph remains, except for the last sentence.

(11) paragraph 33 is struck as is 34, 35, 36, 37, 38, 39 and 40 for a variety of the reasons which I expressed earlier but include redundancy and argument.

(12) paragraph 43 is struck as being redundant.

(13) paragraph 44 is struck.

8As a result of these reasons I leave it to counsel to edit portions on the affidavit, the matter convenient to them. I do not think my assistance is necessary but any administrative order as needed, I would be happy to co-operate.

9The city made a formal order which was not clearly better or equal to what it achieved and a punitive order is therefore not justified. Success on this motion being divided, there is no order as to costs.

JARVIS J.

Date of Reasons for Judgment: January 14, 2005

Date of Release: January 19, 2005

COURT FILE NO.: 294/03

DATE: 20050114

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT