CITATION: Humberplex Developments v. Attorney General for Ontario, 2023 ONSC 2962
DIVISIONAL COURT FILE NO.: 613/21
DATE: 20230526
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: HUMBERPLEX DEVELOPMENTS INC. and FRIENDS TO CONSERVE KLIENBRUG INC., Applicants/Respondents on the Motion
AND:
ATTORNEY GENERAL FOR ONTARIO, ONTARIO LAND TRIBUNAL, KIRBY 27 DEVELOPMENTS LIMITED, EAST KLEINBURG DEVELOPMENTS INC., 1045501 ONTARIO LIMITED, CORPOATION OF THE CITY OF VAUGHAN and YORK CATHOLIC DISTRICT SCHOOL BOARD, Respondents/Moving Party
BEFORE: Matheson J.
COUNSEL: Heather Mackay, for the Moving Party
Paul Morrison and Mark De Sanctis, for the Applicants/Respondents on the Motion
Ira Kagan, for Kirby 27 Developments Limited and 1045501 Ontario Limited, Respondents
Bruce Engell, for The City of Vaughan, Respondent
HEARD: May 17, 2023, in Toronto (by videoconference)
ENDORSEMENT
[1] The Attorney General for Ontario moves to strike out part of the affidavit of Allan Ramsay sworn May 19, 2022 (the “Affidavit”), delivered by the applicants on this application for judicial review. The moving party submits that much of the Affidavit is inadmissible. The applicants disagree and submit that the Affidavit falls within the narrow exceptions by which a party is permitted to supplement the Record of Decision or Record of Proceedings. The other respondents that appear on this motion support the motion.
[2] Originally, there were two motions: this motion, and a motion by the applicants seeking to strike out the Record of Decision. When these motions were scheduled, the parties submitted that they should be heard together, in advance of the panel hearing. Since that time, the applicants have dropped their motion. They now say that the remaining motion, challenging their affidavit, should be left to the panel hearing the application for judicial review. That possible outcome was left open when the motions were scheduled.
Background
[3] In 2019, the applicants brought appeals to the Local Planning Appeal Tribunal[^1] about two amendments to the Official Plan of the City of Vaughan that would permit residential development of a golf course. By decision dated June 30, 2021, the Tribunal dismissed their appeals. The applicants sought judicial review.
[4] At the core of the application for judicial review, the applicants challenge the Transition for Planning Act Appeals O. Reg. 382/19 as ultra vires. O. Reg. 382/19 amended an earlier regulation – O. Reg. 303/19 – and had the effect of limiting certain procedural rights of third parties in appeals to the Tribunal. The Tribunal raised the applicability of O. Reg. 382/19 with the parties. By order dated December 11, 2019, the Tribunal concluded that O. Reg. 382/19 did apply, and the hearing of the applicants’ appeals was therefore conducted under the narrower process.
[5] The amended notice of application for judicial review seeks the following relief:
(a) an order declaring that O. Reg. 382/19 is ultra vires its enabling statute, an improper exercise of statutory power by the Attorney General and that the Attorney General exceeded his jurisdiction under the More Homes, More Choice Act, 2019, S.O. 2019, c. 9 (“Bill 108”);
(b) an order quashing O. Reg. 382/19 as ultra vires the Attorney General;
(c) an order quashing the decision of the Tribunal dated June 30, 2021, on the basis that it was issued in reliance on O. Reg. 382/19, since that regulation is ultra vires; and,
(d) if necessary, an order quashing case management and motion orders made prior to the hearing.
[6] The record for this application for judicial review includes both a Record of Decision, with respect to the challenge to O. Reg. 382/19, and a Record of Proceedings, with respect to the Tribunal hearing, case management, and disposition of the appeals.
[7] The applicants seek to supplement these Records with the Affidavit. The affiant is a land use planner. He was one of numerous expert witnesses whose evidence was put forward in the Tribunal hearing as part of the applicants’ appeals. The Affidavit is lengthy and is challenged on many grounds. The affiant attests that he offers evidence about the impact of O. Reg. 382/19 on the Tribunal’s procedure. The moving party submits that the Affidavit contains argument, legal opinion, speculation and irrelevant evidence.
Issues
[8] There are two related issues on this motion:
(i) whether this motion should be decided now or adjourned to the panel hearing the application on its merits; and,
(ii) whether part of the Affidavit should be struck out as failing to fall within the narrow circumstances in which an applicant can supplement the record in an application for judicial review.
[9] The legal principles that apply to these issues are well established.
Timing of Motion
[10] Courts are generally reluctant to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits: Hanna v. Attorney General for Ontario, 2010 ONSC 4058, at para. 7. For this reason, I, as the case management judge asked to schedule this motion, expressly left it open that the motion judge could adjourn the motion to the panel hearing the application.
[11] There are exceptions to the above general rule. In Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 (Div. Ct.), the motion to strike out certain affidavits was left to be determined by the panel at the merits hearing. At that stage the court found, at para.7, that the motion “should have been brought prior to the hearing by the panel, in order to clarify the contents of the record” and to “define the issues for the hearing based upon properly admissible evidence.”
[12] Permitting “inadmissible argument, opinions or comments to remain in the affidavit until the application is heard presents the opposing party with the dilemma of having to choose between ignoring, responding to and/or cross-examining on the inadmissible paragraphs. None of these options is ideal. A pre-emptive motion to strike the offending paragraphs may be the more appropriate route because it permits the parties to limit their response or cross-examination to those parts of the affidavits that contain admissible evidence.”: Hunt v. Stassen, 2019 ONSC 4466, at para. 11.
[13] However, the Court in Sierra Club cautioned, at para. 7, that 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.”
[14] In Hanna, Swinton J. struck out some expert evidence on the motion and left some issues about the remaining evidence to be determined by the panel at the hearing of the application. This has since been described as a hybrid approach: Hunt, at para. 9; Holder v. Wray, 2018 ONSC 6133. I conclude below that this motion calls for a hybrid approach.
Limits on supplementing the record
[15] The evidence before the courts on judicial review is generally restricted to the record that was before the decision-maker. The court’s role is to review the legality of the decision when it was made. There are few exceptions to this general rule. Sometimes the court will permit affidavit evidence in these circumstances:
(i) where the affidavit provides general background that is needed to understand the relevant issues, however, care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker;
(ii) where the evidence of an alleged defect cannot be found in the record, such as procedural defects that are not apparent on the record;
(iii) where the evidence highlights a complete lack of evidence before the decision-maker regarding a finding of fact; and,
(iv) where the evidence is relevant to the exercise of the court’s remedial discretion.
Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644, at paras. 10-13; 'Namgis First Nation v. Canada (Fisheries and Oceans), 2019 FCA 149, at para. 10.
[16] The moving party submits that, in this case, the scope to supplement the record is even more restricted because the issue is the vires of a regulation: Friends of Simcoe Forests Inc. v. Minister of Municipal Affairs and Housing, 2021 ONSC 381. The moving party submits that the challenge to the Tribunal decision is also determined by the vires outcome. The applicants disagree.
Affidavit at issue
[17] The moving party submits that none of the challenged paragraphs of the Affidavit are relevant or necessary to the issue of whether the regulation is ultra vires. The moving party further submits that those paragraphs offend basic admissibility rules because they contain improper hearsay, argument and purported opinion on the law.
[18] On the objection based on the scope of evidence where the issue is vires, the respondents submit that their judicial review is broader, also challenging the Tribunal decision itself and all the Tribunal case management orders. It may be, as the moving party suggests, that these issues will also rise and fall on the vires issue. But I am not prepared to make that determination now. The panel is better placed to decide that issue of relevance.
[19] The second point is more problematic for the respondents. The Affidavit does include considerable inadmissible evidence.
[20] I begin with the objection to the Affidavit that it includes argument or purported evidence about domestic law and legal opinions. There is no question that evidence of that sort is inadmissible. It is for the court, not a witness, to interpret the law. It is for a factum, not an affidavit, to set out the legal arguments in favour of a party’s position.
[21] Affidavits that contain inadmissible argument, opinions, or comments on the law should be struck out, and this may be done before the panel hearing, Hunt, at para. 11.
[22] The Affidavit contains a substantial amount of inadmissible argument, purported evidence about the law and purported interpretation of the law. For example, this affiant offers evidence summarizing Bills 108 and 139[^2], what they do and do not require, and the impact of that legislation on the process followed by the Tribunal. Some of these paragraphs also include inadmissible speculation including argument and purported opinion evidence about what the Tribunal’s understanding of the evidence would have been under different procedural rules.
[23] I strike out the following paragraphs on this basis: 21-24, 30#1, 30#2, 33,38, 40-43, 48, 51-53, 56, 63-70 and 72-73.
[24] Moving to another objection, which is overlapping, the Affidavit contains opinions about the challenged amendments to the official plan and whether those amendments comply with provincial planning policies, the impact of proposed amendments to the official plan, the affiant’s expectations regarding process, and evidence expressed as the reasons why the affiant chose to put forward the evidence that went before the Tribunal. This proposed evidence does not fall within any exception to the general rule that this Court will decide the judicial review application on the record before the decision maker. This person’s evidence, as submitted to the Tribunal, is in the Record of Proceedings. The following paragraphs are not admissible on this basis: 11-16, 47.
[25] For the purpose of this motion, where a paragraph of the Affidavit has been struck out, so are any exhibits referred to in that paragraph. Some of the exhibits appended to the Affidavit also form part of the Record of Decision/Proceedings. This is not a reason to permit them to also be exhibits to an affidavit. It shows that they are not necessary.
[26] There are additional paragraphs that I see as objectionable for the reasons set out above. There are also paragraphs that give rise to other issues. However, I leave the balance of this motion to be decided by the panel hearing the application. I do so because some objectionable material is mixed in with other material or it is not clear enough to strike out that evidence now. I also do so because, as mentioned above, some of the issues relate to matters that I conclude are better left to the panel.
[27] I therefore conclude that a hybrid approach is appropriate here, as follows:
(1) the following paragraphs of the Affidavit are struck out: 11-16, 21-24, 30#1, 30#2, 33,38, 40-43, 47-48, 51-53, 56, 63-70 and 72-73;
(2) the balance of the motion is adjourned to the panel hearing the application; and,
(3) costs of this motion are also reserved to the panel hearing the application, fixed at the agreed amount of $12,500, all inclusive, except that there shall be no costs ordered against or in favour of the respondents City of Vaughan, Kirby 27 Developments Limited or 1045501 Ontario Limited.
Matheson J.
Released: May 26, 2023
[^1]: Now, the Ontario Land Tribunal.
[^2]: Building Better Communities and Conserving Watersheds Act, 2017, S.O. 2017, c. 23 (Bill 139)