Court File and Parties

CITATION: Rowse v. wpd Canada Corporation 2016 ONSC 5299

DIVISIONAL COURT FILE NO.: 439/15

DATE: 20160822

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ELIZABETH & EDWIN ROWSE v. wpd CANADA CORPORATION and others

BEFORE: NORDHEIMER J.

COUNSEL: J. Parker, for the moving parties/respondents, Minister of the Environment and Climate Change and Minister of Tourism, Culture and Sport

R. Cuervo-Lorens, for the responding parties/applicants

A. Max, for the respondents, wpd Canada Corporation and wpd White Pines Wind Incorporated

HEARD at Toronto: August 18, 2016

E N D O R S E M E N T

[1] Within this judicial review application, the respondents, Minister of the Environment and Climate Change and Minister of Tourism, Culture and Sport, move to strike out two affidavits, and a portion of a third affidavit, all filed by the applicants. The Ministers are supported in their motion by the respondents, wpd Canada Corporation and wpd White Pines Wind Incorporated. One affidavit provides the evidence of an expert witness. The other two affidavits emanate from the applicants. Elizabeth Rowse’s affidavit consists of twelve volumes. Edwin Rowse’s affidavit consists of a few paragraphs.

[2] The underlying application seeks judicial review of a decision by the Director under s. 47.5 of the Environmental Protection Act, R.S.O. 1990, c. E.19 to issue a Renewal Energy Approval (“REA”) for a twenty-seven wind turbine facility in Prince Edward County. I will deal first with the expert affidavit.

[3] The expert affidavit provides an expert opinion that relates to the Heritage Impact Assessment reports that were before the Director. Heritage Impact Assessment reports are part of the material that an applicant for a REA must file in order to obtain such an approval. The expert affidavit takes issue with the methodology and conclusions contained in the Heritage Impact Assessment reports filed by wpd Canada Corporation and wpd White Pines Wind Incorporated. The responding parties contend that, if the proper methodology and conclusions had been reached regarding the heritage impact of the proposed wind turbine facility, a REA would not have been granted.

[4] The basic principle that governs evidence on a judicial review application is not dissimilar to that that applies to the evidence on an appeal from a trial decision. Subject to very narrow exceptions, only the evidence that was before the decision-maker should be before the reviewing court. As this court said in Sierra Club Canada v. Ontario (Ministry of Natural Resources), 2011 ONSC 4086, [2011] O.J. No. 3071 (Div. Ct.) at para. 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.

[5] The evidence of the expert was not before the Director and it is, therefore, presumptively inadmissible on the judicial review application. The responding parties say that this evidence was not before the Director because the process followed by the Director essentially precluded them from submitting this evidence. While it is not clear to me that there was, in fact, any such prohibition against the responding parties submitting the evidence, even assuming that that was the case, it does not make the expert’s evidence admissible on the judicial review application. If the responding parties are contending that there was procedural unfairness that prevented them from submitting relevant evidence, then the Director’s decision is subject to being set aside and the matter remitted for a fresh hearing on that basis. It would only be at the point of any rehearing that the expert’s evidence would become relevant and admissible. It is not evidence, however, that is relevant to the procedural unfairness argument. That argument turns on the unfairness of the process, not the content of the evidence that ought to have been heard.

[6] The responding parties also contend that this expert evidence is necessary for the panel hearing the judicial review application to understand the impact of the evidence on the validity of the Director’s decision. That contention simply tries to evade the impact of the basic principle that a party cannot add to the evidentiary record on a review. The validity of the Director’s decision must be assessed on the record that was before him/her and the process that s/he followed. The responding parties cannot supplement the evidentiary record on an application for judicial review – unless, of course, they bring a successful application for fresh evidence but that has not been done here.

[7] The responding parties further attempt to justify the admissibility of the expert affidavit on the basis that it falls either within the absence of evidence exception or the natural justice exception. Neither exception applies in this case. There is not an absence of evidence on the issues addressed by the expert. To the contrary, not only did wpd Canada Corporation and wpd White Pines Wind Incorporated file expert evidence on the heritage assessment issues but, I am told, so did various Ministries of the Government of Ontario. While the responding parties take issue with the conclusions reached by those experts, that is an entirely different matter than there being an absence of evidence underlying the decision. In terms of the natural justice exception, as I have already pointed out, the expert affidavit is neither relevant nor necessary to the procedural unfairness argument. That argument will have to turn on the evidence of the process followed at the time, not on the merits of the decision reached.

[8] There is authority for the proposition that issues of this kind ought to be addressed in advance of the hearing of the judicial review application so that the record on the application is certain: Sierra Club Canada at para. 7; Lockridge v. Ontario (Director, Ministry of the Environment, 2012 ONSC 2316, [2012] O.J. No. 3016 (Div. Ct.). While it is a procedural step that ought to be resorted to only in the clearest of cases, there is a practical reason for it to be used. If this expert affidavit is accepted, it will likely lead to both the moving parties and wpd Canada Corporation and wpd White Pines Wind Incorporated filing competing expert affidavits and there will then undoubtedly be cross-examinations on all of those affidavits. The time and expense associated with all of that activity ought not to be incurred where the catalyst for it is an affidavit that is not properly part of the record in the first instance.

[9] Consequently, I order that the affidavit of Wendy Shearer be struck from the record for this judicial review application.

[10] The affidavits of the responding parties fall into a different category, though. As it happens, both of the responding parties have professional backgrounds in heritage issues such that they might, in other circumstances, be capable of being qualified as experts on those issues. In this case, however, they could not properly be qualified as experts because they are parties to the proceeding and thus lack the requisite objectivity that every person must have to be properly qualified as an expert. As Cromwell J. said in White Burgess Langille Inman v. Abbott and Haliburton Co. 2015 SCC 23, [2015] 2 S.C.R. 182 at para. 2:

Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. A proposed expert witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so.

[11] The moving parties’ concern about these two affidavits is that, because of the background of the applicants, they are attempting to use these affidavits as expert evidence. I do not read either of the affidavits that way. The affidavits set out charts and maps that the applicants contend show the problems with the expert evidence filed by wpd Canada Corporation, wpd White Pines Wind Incorporated and others. While I acknowledge that, to some degree, the contents of the affidavits may slide into argument, it is not such a serious transgression as to justify striking out the affidavits. The affidavits otherwise just set out the factual basis upon which the applicants’ submissions will be based.

[12] In addition, in response to my question, counsel for the applicants confirmed that the affidavits were not being filed as expert evidence nor would any argument be made that they constitute expert evidence. Consequently, the moving parties’ concern is completely addressed.

[13] In the end result, the affidavit of Wendy Shearer is struck out. The motion is otherwise dismissed. Given the divided success on the motion, I make no order as to costs. On that latter point, I should note that wpd Canada Corporation and wpd White Pines Wind Incorporated did not seek any costs.

NORDHEIMER J.

DATE: August 22, 2016