Court File and Parties

CITATION: South Junction Triangle Grows Neighbourhood Association v City of Toronto, 2024 ONSC 1885

DIVISIONAL COURT FILE NO.: 541/23

DATE: 20240329

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: South Junction Triangle Grows Neighbourhood Association, Applicant

-and -

City of Toronto, Respondents

BEFORE: FL Myers J.

COUNSEL: Cara Sweeny, for the applicant

David Gourlay and Georgia Tanner, for the Respondent

HEARD at Toronto: March 28, 2024

CASE CONFERENCE ENDORSEMENT

1. The City and a private developer settled a heritage and development dispute concerning a proposed development in the Junction Triangle. The neighbourhood association opposed the development and had been very involved in the process. It seeks judicial review of the City’s decision to settle with the developer and to exclude the applicant from the settlement and development approval processes.

2. This case conference was convened to schedule and manage the applicant’s motion to extend the time for this application for judicial review.

3. If I had my druthers, I would have had the motion returnable at the main hearing of the applicaton. The City defends against the requested extension of time principally on the basis that the merits of the proceeding are too weak to justify an extension. It also seeks to argue that it suffered prejudice in the few weeks of delay in issue.

4. Normally, the merits are to be determined by a panel of this court. Unless the matter is near frivolous or vexatious, it does not strike me as an efficient or affordable procedure for the respondent to have a free kick at the merits.

5. But the parties have already incurred the bulk of the cost of the proposed motion. They ask me to help break a scheduling logjam and then to schedule a date for the motion hearing.

6. There are three procedural issues that need resolution for this matter to move forward.

7. First, Ms. Sweeny is a lawyer. She does not practice in the fields of civil litigation or administrative law. She insists that attends as a self-represented litigant as a member of the applicant.

8. Rule 15.01 (2) of the Rules of Civil Procedure, RRO 1990, Reg 194, requires that a corporation shall be represented by a lawyer unless it obtains leave of the court. It is not clear to me that leave is required since Ms. Sweeny is a lawyer. But given her insistence that she attends as a self-represented party, she accepts that she needs leave of the court to do so.

9. Mr. Gourlay advises that he has no instructions yet to consent to an order allowing Ms. Sweeny to represent the applicant. Even if she is not practising in this area, dealing with her at least provides someone who understands the issues and lingo and who is bound by professional ethics. When the City instructs Mr. Gourlay to consent to an order under Rue 15.01 (2) authorizing Ms. Sweeny to represent the applicant, counsel may send me a consent and draft order for signing. If the City does not consent to the order, then I will deal with the matter summarily at a case conference under Rule 50.13 (6). Costs will be in issue as well. Ms. Sweeny may convene the case conference by sending a brief email for that purpose to my Judicial Assistant at therese.navrotski@ontario.ca.

[10] The second procedural issue involves cross-examination of the City’s witness by the applicant.

[11] The City delivered an affidavit of a lawyer setting out the process by which the City made the decision that is challenged by the applicant in this proceeding. He swore that the matter had been considered in an in camera proceeding of City Council. He was wrong. The City has now delivered a supplementary affidavit in which the witness corrects his testimony.

[12] Ms. Sweeny wants to cross-examine the witness. She is incredulous that a lawyer could swear an affidavit with a key fact being dead wrong. Moreover, it was her effort that uncovered the error. She wants to know how the lawyer got the erroneous evidence to which he swore his oath.

[13] The City is prepared to produce its witness for cross-examination under Rule 39.02 in the ordinary course.

[14] Ms. Sweeny raises two issues. First she says the applicant is a community organization that has no funds to pay for a court reporter or transcript of a cross-examination.

[15] Rule 39.02 (4) provides that the examining party has to pay for transcripts for the other side and it is liable for the other side’s costs of the cross-examination unless the court orders otherwise. But that rule applies only to motions. It does not apply to an application.

[16] It appears then that the applicant will need to pay for the examiner and its own copy of the transcript (including the court copy) but not otherwise. This remains too rich for the applicant.

[17] I considered making an order that the City pay for the cross-examination at first instance subject to claiming reimbursement by an award of costs at the hearing. I also considered making an order under Rule 39.03 (4) for the cross-examination to be held in open court at the return of the application and therefore without cost to the applicant.

[18] I am not persuaded however that either order should be made. The applicant is litigating. It knows it bears cost risk in the proceeding. I know nothing of its fund-raising efforts or its spending priorities. While it says it is fighting for the neighbourhood and its residents, the City is also a body interested in the public good. The applicant has no claim to greater virtue.

[19] I would not defer the cross-examination to the hearing. While the applicant has already delivered its factum, in the ordinary course factums are delivered after all evidence is known. In that way the court is given the benefit of factums that are responsive to the full evidentiary record.

[20] Deferring cross-examinations to the hearing then deprives the court of the most thoughtful and complete written argument. It is also not a good use of judicial or court staff time absent a good reason to hold the examination live.

[21] Similarly, ordering the government to presumptively pay costs for people who choose to challenge its decisions is not good policy. It invites litigation by unfunded litigants. In fact, it invited litigants to stay unfunded to avoid the risk of paying costs in the proceeding. That externalizes the litigants’ cost risk to the public and provides incentive for frivolous or vexatious litigation.

[22] That is not to say that an order could not be made on appropriate facts in an appropriate case. I share Ms. Sweeny’s concern that a lawyer appears to have sworn to evidence that was incorrect. I do not immediately infer animus as Ms. Sweeny seems to do. That too can have costs implications. But if a government employee, especially a lawyer, swears to evidence that is incorrect, perhaps it is appropriate for the government to pay to clear the air.

[23] The problem though is that there is really little relevancy to the issue of why the witness got his evidence wrong. The City’s decision-making process is now before the court in evidence. How the witness became armed with the wrong procedure does not advance the hearing of the issue of whether the City’s decision ought to be reviewable on its merits or under the doctrine of procedural fairness.

[24] Cross-examination may undermine the witness’s credibility. But, for the most part, he is just a vehicle to put documents before the court.

[25] I do not understand this case to turn on contested facts with credibility in issue. The court is not likely to become involved in a discussion about the competing views of the merits of the settlement. The issues focus on the exclusion of the applicant from the settlement. Credibility of affiants is unlikely to be in issue.

[26] In all, I leave to the applicant to decide if it wishes to conduct a cross-examination in the ordinary course like all other litigants.

[27] The third preliminary issue involves the timing of the City’s factum. Ms. Sweeny submits there is a lack of clarity to the City’s legal position. She would like the City to take a clear and precise position before she cross-examines its witness. She delivered the applicant’s factum and asks that the City be required to do so.

[28] I am not prepared to give that direction. Certainly, counsel can speak to discuss the issues if both are willing. If the applicant believes it is entitled to certain information, it can seek it formally. If the City is not violating the Rules, so that no motion is available, the applicant can still raise any lack of communication and cooperation in submissions on costs at the end of the day.

[29] But as discussed above, factums should be reserved until all evidence is adduced in the proceeding. They should address the other side’s evidence to the extent needed to help the case or to undermine the other side’s submissions. This is the timing set out in the Rules. See Rule 38.09 (1) and (3).

[30] Accordingly, I make the following directions scheduling the remaining steps in the applicant’s motion to extend the time for the commencement of this proceeding:

a. Cross-examinations, if any, shall be completed by April 26, 2024;

b. The applicant’s revised factum, if any, shall be delivered by May 10, 2024;

c. The respondent’s factum shall be delivered by May 24, 2024; and

d. the motion will be heard for no more than two hours on June 7, 2024.

FL Myers J.

Release Date: April 2, 2024