CITATION: Clean Train Coalition Inc. v. Metrolinx, 2012 ONSC 6096
DIVISIONAL COURT FILE NO.: 380/12
DATE: 20121023
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
CLEAN TRAIN COALITION INC.
Applicant
(Moving Party)
– and –
METROLINX
Respondent
(Responding Party)
Saba Ahmad
for the Applicant
(Moving Party)
Myriam Seers
for the Respondent
(Responding Party)
HEARD at Toronto: October 23, 2012
LAX J. (ORALLY):
[1] The applicant, Clean Train Coalition Inc. (CTC), brings this motion to obtain leave to file an affidavit to be used as evidence on an application to be heard by a panel of the Divisional Court on November 19, 2012. The notice of application seeks declaratory and other relief in relation to the kind of trains that will run on the air rail link (ARL) being constructed by the respondent Metrolinx between Lester B. Pearson International Airport and Union Station in Toronto. The CTC is a non-profit Ontario corporation and public interest group representing affected communities along the ARL corridor. It requests an order setting aside any decision to run diesel trains on the route.
[2] In response to the application, Metrolinx filed the affidavit of Mr. McNeil and raised the issue of delay in bringing the application for judicial review. Partly through inadvertence and partly through inexperience, CTC did not file its own evidence on this issue and it perfected its appeal before the cross-examination of Mr. McNeil. On the cross-examination, it did not obtain the evidence that it anticipated when it cross-examined him on the issue of delay. The proposed affidavit of Carina Cojeen, a former co- Chair of CTC, seeks to explain the delay.
[3] Rule 39.02(02) precludes the CTC from delivering Ms. Cojeen’s affidavit without leave as it has completed its cross-examination of Mr. McNeil. Metrolinx opposes the granting of leave.
[4] In deciding whether to exercise discretion to grant leave, the Court will consider the following factors.
[5] First, is the evidence relevant? Metrolinx does not dispute that the evidence contained in the body of Ms. Cojeen’s affidavit has some relevance to the issue of the CTC’s delay. The CTC agreed that the essential evidence that it requires for the application is the affidavit of Ms. Cojeen and the attachment at tab “A”.
[6] Second, is the evidence responsive to something raised in cross-examination? It is the position of CTC that Metrolinx distributed a misleading flyer in March 2011 that caused people to believe that the ARL would open as an electric system. The respondent agrees that Mr. McNeil was asked for his views as to whether it was more difficult for the CTC to obtain community support if the community was under the mistaken impression that the ARL would be electrified in 2015 as a result of the Metrolinx flyer. Mr. McNeil responded that he was “not sure whether that would be the case”. The affidavit of Ms. Cojeen explains the circumstances of the flyer and the impact this had on mobilizing support to oppose the running of diesel trains on the ARL. CTC has satisfied this factor.
[7] The third factor to be considered is whether there is non-compensable prejudice that cannot be addressed by imposing costs terms or an adjournment.
[8] The parties have arranged to conduct the cross-examination on Ms. Cojeen’s affidavit tomorrow afternoon in the event the Court grants leave. As a result, there will be no postponement of the hearing date on November 19th. The only prejudice the respondent raises is that this motion has diverted Metrolinxs’ lawyers from preparing for the hearing on November 19th. I do not consider this to be sufficient prejudice to deprive the moving party of the exercise of the court’s discretion. In any event, this can be addressed by an award of costs.
[9] The final factor to be considered is whether there is a reasonably adequate explanation for not having included the evidence at the outset. The CTC has provided an explanation. While I do not suggest that it is a compelling explanation, it is a reasonably adequate one in the circumstances. Therefore, the moving party has satisfied each of the factors to be considered in deciding whether to grant leave. See, Knowles v. Arctic Glacier, 2011 ONSC 682 at paragraph 51.
[10] I would not grant leave to deliver the Cojeen affidavit in its present form. I agree with the respondent that paragraphs 9 and 10 are not relevant to the issue of delay. I would also exclude paragraphs 25, 26, 27, 28 as irrelevant as well as paragraph 29 that attached Exhibit “B”, consisting of excerpts from Metrolinx’s Environmental Project Report. Ms. Cojeen deposes that this document further explains the project, but clearly it does not address the question of delay.
[11] With these exclusions, leave is granted to deliver the affidavit.
[12] Costs are fixed in the amount of $3,500 payable in the cause.
LAX J.
DATE OF REASONS FOR JUDGMENT: October 23, 2012
DATE OF RELEASE: October 29, 2012
CITATION: Clean Train Coalition Inc. v. Metrolinx, 2012 ONSC 6096
DIVISIONAL COURT FILE NO.: 380/12
DATE: 20121023
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
CLEAN TRAIN COALITION INC.
Applicant
(Moving Party)
– and –
METROLINX
Respondent
(Responding Party)
REASONS FOR JUDGMENT
LAX J.
DATE OF REASONS FOR JUDGMENT: October 23, 2012
DATE OF RELEASE: October 29, 2012