CITATION: Tribute v. Ontario Energy Board et al. 2017 ONSC 7151
DIVISIONAL COURT FILE NO.: 33/16 DATE: 20171130
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
J. Henderson, H. Pierce, J. Fregeau JJ.
BETWEEN:
Tribute Resources Inc.
Appellant
– and –
Ontario Energy Board and Municipal Property Assessment Corporation
Respondents
and –
Ontario Petroleum Institute Inc.
Intervenor
Mr. J. Downing, for the appellant
Ms. Alexi Wood, for Ontario Energy Board
Ms. K. Lunau and Mr. C. Ho for Municipal Property Assessment Corporation
Ms. C. Patterson for Ontario Petroleum Institute Inc.
HEARD: November 29, 2017
j. HENDERSON j.
[1] This is our decision on two preliminary motions that were argued together.
[2] One motion is brought by the Ontario Petroleum Institute (“OPI”) by which OPI requests leave to file fresh evidence at this appeal. The proposed fresh evidence is the affidavit of James McIntosh.
[3] The second motion is brought by the Ontario Energy Board (“OEB”). In that motion counsel for OEB requests that this panel vary the decision of Justice Hockin dated September 29, 2017 whereby Justice Hockin purported to grant leave to OPI to file fresh evidence.
[4] OEB contests the OPI motion to introduce the proposed fresh evidence.
[5] In our view, there is no need for this panel to decide whether Justice Hockin had the jurisdiction to make the order of September 29, 2017. We have considered the issues raised in these two motions as, in essence, one issue; namely, should this panel accept the affidavit of Mr. McIntosh as evidence in this appeal.
[6] We find that the McIntosh affidavit satisfies the four criteria for fresh evidence as set out in the Palmer decision, except that certain parts of the affidavit are not relevant or constitute inadmissible expert opinion evidence.
[7] Therefore, we grant leave to file the McIntosh affidavit, but the affidavit is to be redacted to remove the irrelevant and inadmissible portions.
[8] The parts of the affidavit that will be redacted are as follows:
paragraphs 18 and 20 with respect to oil production will be redacted as these paragraphs are irrelevant to this appeal; and
paragraphs 24 and 31 contain opinion evidence that we find to be inadmissible and those two paragraphs will be redacted.
[9] Regarding the other paragraphs that OEB suggested be struck, we find that those paragraphs are merely statements of fact, not opinion, and should not be struck.
[10] Further, the portions of OPI’s factum that reference the redacted paragraphs will also be struck.
[11] That completes the ruling. I have endorsed the Ontario Energy Board motion record, “order to go permitting fresh evidence on terms”.
“Justice J. Henderson”
J. Henderson J.
I agree
“Justice H. Pierce”
H. Pierce J.
I agree
“Justice J. Fregeau”
J. Fregeau J.
Date of Oral Reasons for Judgment: November 29, 2017
Date of Release: November 30, 2017
CITATION: Tribute v. Ontario Energy Board et al. 2017 ONSC 7151
DIVISIONAL COURT FILE NO.: 33/16 DATE: 20171130
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. Henderson, H. Pierce, J. Fregeau JJ.
BETWEEN:
Tribute Resources Inc.
Appellant
– and –
Ontario Energy Board and Municipal Property Assessment Corporation
Respondents
ORAL REASONS FOR JUDGMENT
J. Henderson J.
Date of Oral Reasons for Judgment: November 29, 2017
Date of Release: November 30, 2017