Citation: Ontario Propane v. Her Majesty, 2010 ONSC 6508

DIVISIONAL COURT FILE NO.: 401/10
DATE: 2010/11/26

SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT)

RE: ONTARIO PROPANE ASSOCIATION INC. v. HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and MINISTER OF CONSUMER SERVICES

BEFORE: Herman J.

COUNSEL:
Leslie McIntosh for the Respondents/Moving Parties
Ian Blue for the Applicant/Responding Party

HEARD AT TORONTO: November 22, 2010

E N D O R S E M E N T

[1] The Crown moves to strike certain paragraphs of the affidavit of Robert Smith Wilson and certain exhibits of the affidavit of Gordon Douglas Ellis on the grounds that they are legal argument or are otherwise improper.

[2] The Ontario Propane Association (OPA) submits that the motion is premature in that determinations of the admissibility of evidence filed in support of a judicial review application should be left to the panel hearing the application. Furthermore, the OPA disagrees that the evidence is legal argument.

Background

[3] The OPA has brought an application for judicial review for a declaration that O. Reg. 440/08 is ultra vires the Technical Standards and Safety Act,2000, S.O. 2000, c. 16.

[4] The OPA represents the interests of propane retailers, transporters, producer and suppliers in the propane industry.

[5] O. Reg. 440/08 amends O. Reg. 211/01 (Propane Storage and Handling). The regulation was developed in response to the Sunrise Propane explosion on August 10, 2008 in Toronto.

[6] On August 28, 2008, the Minister of Small Business and Consumer Services established the Propane Safety Review Panel to undertake a comprehensive review of the legislative and regulatory framework for the safe storage, handling, location and transport of propane in Ontario.

It released its report on November 7, 2008. Its recommendations included a requirement that every propane facility have a risk and safety management plan (RSMP).

[7] On December 11, 2008, the Ministry announced that a new regulation had been made: O. Reg. 440/08. That regulation requires every propane business to prepare an RSMP. After 2011, it will be illegal to operate a propane business without an approved RSMP.

[8] The OPA now challenges that regulation as being ultra vires. In support of its application, it has filed two affidavits: one from Mr. Wilson, a professional engineer and member of Professional Engineers of Ontario; and the other from Mr. Ellis, the compliance director of the OPA.

General Principles

[9] The parties accept the principle that, in general, the admissibility or relevance of an affidavit filed in support of an application should be dealt with by the panel hearing the application and not by a motion judge on an interlocutory basis. The parties disagree as to the applicable exceptions to that principle.

[10] The Crown pointed to the decision of Foster Wheeler Canada ltd. v. MBB Power Services Inc., [2007] O.J. No. 981 (Sup. Ct.) at para. 14 which, in turn, refers to the decision in Zeitler v. Inmet Mining Corp. [2001] O.J. No. 5022 (Sup. Ct.) at para. 6. In Foster Wheeler, Quinn J. articulated three exceptions to the general principle. Affidavits or portions of affidavits may be struck where they: (i) breach the rule of adjudicative secrecy; (ii) offend the policy on deliberative confidentiality; or (iii) contain legal argument and conclusions of law.

[11] In Ontario (Ministry of Natural Resources v. Ontario Federation of Anglers and Hunters [2001] O.J. No. 750 (Div. Ct.); aff’d [2001] O.J. No. 5320 (Div. Ct.), a panel of the Divisional Court upheld the decision of Dunnet J. that certain affidavits and portions of affidavits should be struck on the basis that they constituted hearsay, improper opinion evidence or legal argument. The panel rejected the argument that the motion judge should have declined to decide the issue and, instead, should have referred it to the full panel for determination at the hearing of the judicial review.

[12] The OPA submits that recent decisions reflect an increased reluctance on the part of courts to strike affidavits on an interlocutory basis. It points to the decision in Hanna v. Ontario (Ontario General), 2010 ONSC 4058, [2010] O.J. No. 3081 (Div. Ct.) in which the respondent argued that the affidavits should be struck because: they were irrelevant and inadmissible; they contained material that post-dated the public consultation process; the deponent was not qualified to give expert evidence; and the affidavits contained hearsay evidence.

[13] Swinton J. was not prepared, as a motion judge, to say that the material filed was clearly irrelevant. She was also not prepared to determine the deponent’s qualifications to give expert evidence nor deal with an issue of statutory interpretation. It was her view that these matters were best left to the panel hearing the merits of the application. She did, however, find that references to studies after a certain date were irrelevant and should be struck.

[14] In Anderson v. Hunking, [2010] O.J. No. 248, Master Glustein referred to situations in which it would be inappropriate for the impugned material to come to the attention of the judge hearing the motion: privileged information, settlement discussions or statutorily inadmissible material of a highly prejudicial nature.

[15] One case to which I was referred in which the judge refused to strike legal arguments and conclusions was Elementary Teachers’ Federation of Ontario v. Ontario Minister of Labour), [2008] O.J. No. 662 (Div. Ct.). In that case, Pitt J. concluded that the full panel would probably be in a better position to deal with the issues relating to “hearsay evidence, inflammatory expressions, improper opinion evidence, legal arguments and conclusions”.

[16] I do not regard these decisions as departures from the principles articulated in Foster Wheeler and Zeitler. Rather, they support the proposition that a court will not generally deal with issues of relevance and admissibility on an interlocutory basis. However, the court may choose to strike affidavits or portions of affidavits in certain limited circumstances.

The Affidavits

The affidavit of Mr. Wilson

[17] The impugned sections of Mr. Wilson’s affidavit are paragraphs 6-11 and paragraph 21.

[18] In paragraphs 6 to 11, Mr. Wilson discusses whether an RSMP could be regarded as a “safety procedure” or a “technical standard”. He states that he does not want to usurp the function of the court.

[19] At the same time, Mr. Wilson says that he has been asked for his opinion on what the terms mean, as the terms are used in the TSSA. While this statement may, on its face, have the appearance of a legal opinion, Mr. Wilson goes on to explain what the terms mean in practice, from the point of view of a professional engineer. In my opinion, the paragraphs are not, in substance, legal argument.

[20] The final paragraph that the Crown asks to be struck is paragraph 21. In that paragraph, Mr. Wilson lists nine problems that he has with the regulation which would indicate it was prepared with insufficient care.

[21] Much of the content of this paragraph relates to Mr. Wilson’s opinion as to the practical implications of the regulation. There are statements, however, in which Mr. Wilson gives his opinion on legal meaning or legal authority (for example, paragraph 21 (d): “...the authority to provide this guidance is not found in O. Reg. 440/08”).

[22] Excising particular portions of the paragraph or portions of sentences would require me to engage in an editing exercise and would render the paragraph difficult to read. It is preferable to let the paragraph stand. The panel is well able to distinguish between those portions of the paragraph that arise from Mr. Wilson’s engineering knowledge and experience and those portions that constitute legal argument or conclusions of law.

[23] Whether Mr. Wilson’s opinion as to what the regulation means in practice is relevant is best left to the panel hearing the application to determine.

The affidavit of Mr. Ellis

[24] The Crown asks that the following exhibits to the affidavit of Mr. Ellis be struck: I, M, Q, R, S, T, U, V and W.

[25] These exhibits are: a letter from the Professional Engineers Ontario expressing a concern that the regulation could extend to regulating the practice of professional engineering; e-mails between the Chair of the TSSA Propane Advisory Council and the Ministry concerning the Council’s position regarding the requirements of the regulation; and e-mails between the Ministry and the Ontario Propane Association.

[26] The Crown submits that these exhibits constitute argument and are irrelevant to the lawfulness of the regulation.

[27] The OPA submits that the correspondence contained in these exhibits is evidence of the context of the legislation and regulation. It points to the requirement that a court give a “purposive” interpretation to legislation and, in doing so, consider the wording of the Act, the legislative history, the scheme of the Act and the legislative context (R. v. Kapp, [2008] 2 S.C.R. 484 at para. 82).

[28] In my opinion, whether the impugned correspondence is relevant or helpful to the panel hearing the application is something that the panel is in the best position to determine.

Conclusion

[29] For the reasons set out above, I decline to strike paragraphs or exhibits from the two affidavits. The motion is therefore dismissed.

[30] The parties have agreed that costs of this motion should be in the cause and it is so ordered.

Herman J.