Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086
CITATION: Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 DIVISIONAL COURT FILE NO.: 412/10 DATE: 2011-06-29
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SIERRA CLUB CANADA Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTATIVE OF THE MINISTRY OF NATURAL RESOURCES AND THE MINISTRY OF TRANSPORTATION Respondents
COUNSEL: Paula Boutis, for the Applicant William J. Manuel and Lise Favreau, for the Respondents
HEARD: May 18, 2011
BEFORE: Jennings, J. Wilson, Lederer J.J.
ENDORSEMENT
Preliminary Motion to strike three affidavits
[1] The applicant Sierra Club Canada is seeking judicial review of the decision of the Minister of Natural Resources dated February 9, 2010 granting a permit to the Ministry of Transportation pursuant to section 17(2)(d) of the Endangered Species Act, 2007, S.O. 2007, c. 6 (the ESA). The permit allows the development of the proposed Windsor Essex Parkway portion of the Detroit River International Crossing project (the Decision). It is the applicant’s position that the project places in jeopardy the survival or recovery of two species of snake – the Butler’s Gartersnake and the Eastern Foxsnake (Carolinian population) – as well as the colicroot plant.
[2] The Respondents brought a preliminary motion at the opening of this three-day hearing before the panel to strike two affidavits filed by the applicant in their entirety, and to strike aspects of a third affidavit.
[3] The three affidavits that the respondents seek to strike include:
- the affidavit of Dr. Robert Murphy – a professor in the Department of Ecology and Evolutionary Biology at the University of Toronto,
- the affidavit of Ms. Diane Saxe – a lawyer with expertise in the environmental law field, and
- the affidavit of Dan McDermott – the Director of the Ontario Chapter of Sierra Club Canada.
[4] Dr. Murphy was retained some six months after the Decision was rendered to conduct a peer review of one of the reports drafted by an expert retained by the Ministry with respect to the Eastern Foxsnake. Dr. Murphy’s affidavit also presents evidence on scientific authorities that were available prior to the rendering of the Minister’s Decision.
[5] Ms. Saxe’s affidavit outlines evidence about licencing procedures applicable in environmental assessments conducted under other statutory regimes, and she provides opinion evidence about how she believes the ESA should be interpreted.
[6] Mr. McDermott provides a detailed affidavit of some 276 paragraphs attaching numerous exhibits, regarding historical matters at issue in this application.
[7] We are of the view that this motion should have been brought prior to the hearing by the panel, in order to clarify the contents of the record prior to factums being filed. Proceeding in such a manner would have enabled the parties to define the issues for the hearing based upon properly admissible evidence. I note that this was the procedure followed in the decision of Hanna v. Ontario (Attorney General), 2010 ONSC 4058 (Div. Ct.). If the motion judge is unsure about the relevance of certain material, those issues may be left to be determined by the panel hearing the judicial review.
[8] To fail to define the appropriate record for the Court before the hearing encourages the proliferation of collateral issues, as occurred in this application. Filing material by one party inevitably precipitates a response from the opposite party. The consequence of failing to define the record is a proceeding before this court that becomes unnecessarily complicated, expensive and lengthy. For the parties and for the court, the ground is continually shifting, and the core issues may be eclipsed by the procedural issues.
[9] Illustrative of why this motion should have been brought before the hearing is the chart prepared by the respondent that was provided to the Court the day before the hearing began. This chart spans some 75 pages to explain what paragraphs of the affidavit of Mr. McDermott should or should not be considered by the court based upon the parties’ agreement, which was reached shortly before the hearing. There remained eight areas of dispute.
[10] Although this narrowing of the issues was commendable, it should have taken place well before the hearing of this matter. The factums had already been prepared. This court should not be asked to edit the factums to extract references to inadmissible evidence.
The principles that apply to the filing of material with the Court in a judicial review application
[11] The scope of appropriate materials to be filed in a judicial review application is limited. The principles bear repeating to avoid this sort of problem in the future.
[12] Judicial review proceedings have a narrow focus. Brown and Evans, in Judicial Review of Administrative Action in Canada (Canvasback, looseleaf), have described the court's role on judicial review as follows (at para. 12:3100):
On an application for judicial review, the courts play only a residual role in reviewing the findings of fact made by administrative adjudicators. Generally speaking, in the absence of a statutory right of appeal, the courts are confined to ensuring that the findings on which the decision is based are supported by some logically probative evidence on which the decision-maker may lawfully rely.
[13] The general rule is that, on an application for judicial review, affidavits containing material that was not before the decision-maker at first instance will not be allowed. The record that goes before the reviewing court should essentially be the material that was before the decision-maker at the time the decision was being made. See e.g.: Mianowski v. Ontario (Human Rights Commission), 2003 CarswellOnt 3671 (Div. Ct.); Lincoln (County) Board of Education v. Ontario (Information & Privacy Commissioner) (1994), 76 O.A.C. 235 (Div. Ct.); Ontario Hydro v. Ontario (Assistant Information & Privacy Commissioner) (1996), 97 O.A.C. 324 (Div. Ct.).
[14] Affidavit evidence is permissible to supplement the record in exceptional circumstances to demonstrate an absence of evidence on an essential point in the decision (which is to say, to demonstrate a jurisdictional error) or to show a breach of natural justice that cannot be proved by mere reference to the record: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 ONCA 1877, 114 D.L.R. (3d) 162 (Ont. C.A.), at 170.
[15] We reiterate that affidavit evidence to supplement the record may be admissible in exceptional circumstances only.
Consideration of the affidavits filed
[16] The applicant retained Dr. Murphy as an expert six months after the Decision was rendered in order to have Dr. Murphy conduct a peer review of the independent expert reports prepared by Rob Wilson of RiverShore Environmental Solutions Inc., James Kastra and Dr. Ronald Brooks with respect to each snake species.
[17] The applicant had been provided with the reports prepared by the experts appointed by the Ministry before the Decision of the Minister was made, and the applicant took the opportunity to make submissions in writing at that time. The applicant did not provide the Minister with any alternative expert reports in support of its concerns at that time.
[18] Clearly, it is not appropriate to allow the applicant’s expert to conduct a peer review of expert reports relied upon by the Minister months after the Decision when the applicant had the opportunity to retain independent experts prior to the Decision being made. We conclude without hesitation that this affidavit material is not admissible. There are no exceptional circumstances justifying its admission. The affidavit of Dr. Murphy is therefore struck.
[19] The affidavit of Ms. Saxe considers the interpretation of other legislation that is not applicable in this case. We are of the view that this information is irrelevant and hence inadmissible. The affidavit also contains opinion evidence about how the ESA should be interpreted. With respect, it is not appropriate for a lawyer to give an opinion about how new legislation is to be interpreted. This is the Court’s function. The affidavit of Ms. Saxe is therefore struck as irrelevant and inadmissable.
[20] The very lengthy affidavit of Mr. McDermott spans some 248 paragraphs. The affidavit contains extensive hearsay evidence, opinion evidence, and information based upon belief where the source of the information is not specified. The affidavit also contains numerous documents that were available only after the Decision was made, and other documents arising from a Federal Court challenge launched by the applicant.
[21] With respect to the affidavit of Mr. McDermott, we conclude that the contested portions of the affidavit, with the exception of one e-mail chain, should be struck as irrelevant or not properly admissible. We conclude that the e-mail chain regarding whether or not the applicant’s experts came to an agreement with the Ministry staff about appropriate mitigation methods is admissible, and may be considered by the Court.
[22] It became clear as the matter was argued that the voluminous additional material was not relevant to the question of whether the Minister had considered the factors enunciated in section 17(2)(d) of the ESA and whether the Decision of the Minister was reasonable.
[23] We repeat our concern that generally these procedural issues meant to properly define the record need to be determined before the date of the hearing, and indeed before the parties’ facta are finalized. The costly last-minute filings that occurred in this case undermine the Court’s ability to efficiently and fairly deal with the matters in issue and should be avoided.
J. WILSON, J.
JENNINGS, J.
LEDERER J.
Released: June 29, 2011
CITATION: Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 DIVISIONAL COURT FILE NO.: 412/10 DATE: 2011-06-29
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SIERRA CLUB CANADA Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTATIVE OF THE MINISTRY OF NATURAL RESOURCES AND THE MINISTRY OF TRANSPORTATION Respondents
ENDORSEMENT
The Court
Released: June 29, 2011