Court File and Parties

CITATION: Agneca Inc. v. The City of Toronto, 2026 ONSC 1312

DIVISIONAL COURT FILE NO.: DC-25-00000404-00JR

DATE: 20260311

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: AGNECA INC. Applicant/ Responding Party

AND:

THE CITY OF TORONTO Respondent/ Moving Party

BEFORE: L. Brownstone J.

COUNSEL: Matthew Cornett and Ryan Krahn for the Moving Party

Eric Gillespie for the Responding Party

HEARD at Toronto: March 04, 2026

ENDORSEMENT

[1] On April 24, 2025, the respondent City of Toronto amended a zoning bylaw to permit the building of supportive rental housing at 7-9 Wardlaw Crescent. The applicant, Agneca Inc., is a community organisation that challenges the City’s decision. In its application for judicial review, Agneca asserts that “[t]he Project is one of more than twenty (20) similar projects (existing and proposed) where the City has taken this approach”, referring to what it alleges is a failure to consult, a closed-minded approach to decision-making on the part of the City, and an improper confining of the record provided to Council.

[2] The City prepared its record of proceedings comprising the materials that were before City Council when it made its decision.

[3] Agneca has submitted an extensive record relating in part to other projects.

[4] The City moves to strike portions of Agneca’s 1,127-page application record, submitting that the contents are “irrelevant, improper, and an attempt to expand the scope of the applicant's judicial review beyond the decision at issue.”

[5] The motion to strike was scheduled as a preliminary motion to be heard in advance of the application, in part because the outcome of the motion will affect whether the City will file responding materials about the other projects to which the application record refers.

Governing principles

[6] An application for judicial review is generally decided on the basis of the record that was before the initial decision-maker.

[7] In exceptional circumstances, affidavit evidence may be permitted. The three recognized exceptions are:

i) where the evidence seeks to provide general background information, which does not include information that goes to the merits of the matter;

ii) where the affidavit is designed to demonstrate that there was a complete absence of evidence before the tribunal below on a certain issue; and

iii) where the evidence goes to the issue of natural justice, procedural fairness, improper purpose or fraud that could not have been put before the original decision-maker: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R.(2d) 513 (C.A.).

[8] Affidavit evidence that a party seeks to adduce must also meet the usual admissibility requirements for evidence on an application.

[9] Further, it is open to a motion judge to make determinations about the record in advance of an application. A preliminary motion of this kind may be scheduled when there is concern that a voluminous record containing potentially inadmissible evidence would result in the respondent having to compile its own voluminous responding record. The records and the application can become unwieldy and compromised by collateral issues.

[10] A judge hearing such a motion balances competing interests. There is an important interest in defining the record, removing impermissible argument, and avoiding the proliferation of the record and collateral issues. At the same time, the motion judge should be cognisant of the panel’s role in determining the matter, including the panel’s assessment of the tenability of the various grounds for the application and of the evidence in support of those grounds. If the motion judge is uncertain about the relevance of certain material, the issue may be left to the panel to determine: Rockcliffe Park Residents Association v. City of Ottawa, 2024 ONSC 2690 at paras. 30-33.

Analysis

[11] Agneca raised a preliminary objection to the relief sought by the City, objecting to the way the City had managed the evidence on this motion. Agneca submits that the City ought to have refiled Agneca’s affidavit records in the City’s motion record to ensure the evidence the City was impugning was properly before the Court. Agneca submits that given that the City has not dealt properly with the evidence, the City is not in a position to complain about Agneca’s evidence. Agneca also claims the Record of Proceedings should have been submitted by affidavit.

[12] I do not agree with these submissions. It was not necessary for the City to refile the 1,127-page application record in the form of a motion record in order to refer to it on the motion. Nor has the City improperly filed its Record of Proceedings. The Record of Proceedings is 83 pages and includes the only material that was before the Council when it adopted the amendment. It includes the Notice of Public meeting, staff reports, video recordings of the proceedings before the Planning and Housing Committee and Council, and a list of all speakers.

[13] The City’s motion to strike must be analyzed in the context of the application Agneca seeks to pursue. Agneca wishes to attack the City’s zoning amendment on the basis that the City approached its decision, and its required consultation under the Planning Act. R.S.O. 1990, c. P. 13, with a closed mind. Agneca submits that the City’s decision to make the bylaw amendment was a foregone conclusion long before it held its planning consultation or its vote on the bylaw amendment. Its reference to the “more than twenty (20) similar projects (existing and proposed) where the City has taken this approach” is meant to support its position that the City has repeatedly demonstrated that it approaches these decisions with a closed mind.

[14] Agneca acknowledges that the only decision under review, and the only decision that can be affected by the application for judicial review, is the bylaw amendment with respect to 7-9 Wardlaw Crescent. The reference to the other projects is intended to support its position that the City’s bias is demonstrated by a pattern of behaviour. Agneca also wishes to argue before the panel that the City unduly and improperly restricted the record that was put before Council when it made the decision authorizing the zoning amendment.

[15] The City objects to evidence that is about other City decisions which are not under review in this application, evidence that does not comply with the Rules, and evidence that is irrelevant and inflammatory. I shall review the impugned evidence in the general order in which it was argued.

Affidavit of Tamara Schlosser

[16] Tamara Schlosser, who identifies herself as the vice-chair of Agneca Inc, has sworn an affidavit that is 12 pages long and includes 40 exhibits of documents that are not in the City's Record of Proceedings. The City moves to strike the following paragraphs:

a. Paragraphs 11 and 12, and Exhibits E (3) and (4)

[17] The subject property of these paragraphs and documents is an adjacent property. The documents appear to show that in 2019, the City advised residents that it intended to use 7-9 Wardlaw Crescent as green space. The affiant deposes that the city altered those plans without hearing from residents. While municipalities do not owe a common law duty of procedural fairness to their residents, they are required to provide sufficient information to the public so that the public can understand the zoning proposal, and hold at least one public meeting for the public to provide representations (s. 34(12) Planning Act). I am prepared to permit that portion of paragraph 11 to stand. However, the paragraph goes on to put forward improper legal argument. The portion of paragraph 11 from “this directly contravenes the principles of natural justice” to “lastly, it is also connected” is struck.

[18] I decline to strike paragraph 12, which refers again to the City’s position on the adjacent property and plans that the “third and final phase will include the development of community greenspace on the two adjacent City-owned properties at 7 and 9 Wardlaw Crescent.” What, if any, use can be made of these representations should be a matter for the panel to decide.

b. Paragraph 22 and Exhibit E (15)

[19] This paragraph annexes as an Exhibit an FAQ for the subject property. The paragraph alleges the FAQ shows the City had decided the land would be used for the purposes of building supportive housing in 2023, before any meetings were held. It also makes allegations about information not being communicated to the public. On a preliminary motion to strike, I am not assessing the weight of the evidence, merely whether it clearly ought not be part of the record. The applicant wishes to argue that this document demonstrates the City approached its consultation with a closed mind. It should be permitted to make that submission to the panel. The penultimate sentence of the paragraph is legal argument and is struck.

c. Paragraphs 27 and 28, Exhibit E(20A)

[20] These two paragraphs and the Exhibit attach a document whose author is not identified. The document purports to be a summarized transcript of the Planning and Housing Committee meeting of April 10, 2025. The document contains annotations of “key details”.

[21] The video of the meeting in question forms part of the Record of Proceedings. The video is the best and proper evidence of the Committee proceedings. The exhibit of unidentified provenance is neither necessary nor reliable. Paragraphs 27 and 28, and Exhibit E(20A) are struck.

d. Paragraph 29 and Exhibit E(20B); Paragraphs 35-38, Exhibits E(25B) and E 26

[22] Paragraph 29 and Exhibit E(20B) relate to a blog post of Public Progress, described as an entity that works with organizations “to acquire, develop, fund, manage and launch transitional, supportive and affordable housing.” Public Progress was retained by the City to facilitate its community engagement with respect to the project at 7-9 Wardlaw Crescent. The blog post is in favour of supportive housing in general and makes comments about the Wardlaw property and the April 10 Committee meeting. Paragraph 29 of Ms. Schlosser’s affidavit is highly critical of the blog post and its “moral commentary”. The City argues that inclusion of this material is irrelevant (it was not before Council when Council made its decision) and inflammatory.

[23] I agree that this paragraph and Exhibit are irrelevant. The fact that City Council retained an organization that facilitates supportive housing for its community outreach on this supportive housing project is not in dispute. Anything beyond that fact is irrelevant. Paragraph 29 and Exhibit E(20B) are struck.

[24] Paragraph 35 and Exhibit E(25B) relate again to Public Progress. Paragraph 35 and Exhibit E(25B) relate to conduct and an email that postdate the April 24, 2025, decision. The complaint is about a dispute that arose between Public Progress and Agneca. The materials have no relevance to the decision under review and are struck.

[25] Paragraphs 36-38 and Exhibit E(26) again relate to Public Progress and its staff. Again, the fact that City Council retained an organization that facilitates supportive housing for its community outreach on this supportive housing project is not in dispute. Anything beyond that fact is irrelevant. Paragraphs 36-38 and Exhibit E (26) are struck.

e. Paragraph 33 and Exhibit E (24)

[26] This evidence annexes unattributed photographs that post-date the decision under review. The photographs show the demolition of the building that had occupied 7-9 Wardlaw Crescent. The paragraph and exhibits are irrelevant and are struck.

f. Paragraph 34 and Exhibit E(25A)

[27] This paragraph and exhibit refer to a compilation of email correspondence from residents to the mayor, the local city councillor, city staff, and the Premier between March and July 2025. The affiant deposes that most of the emails pre-date the April 2025 City Council meeting at which the amendment was approved, and most are from residents to the mayor or the city councillor.

[28] The City states these are not relevant because they were not before City Council. But the argument the applicant wishes to advance is that these many emails raising concerns from residents ought to have been before City Council. The applicant says that the City cannot unduly constrict the record, and then rely on that improper constriction to say the material is inadmissible to a review of the City’s decision. Nor does the fact that there are no replies from the mayor or the councillor change the analysis. The applicant may wish to rely, in support of its arguments, on the very fact that there were no responses to these emails. The panel ought to determine the use, if any, to be made of that evidence. However, it is only emails that predate the April 24, 2025, meeting that can be relevant to these arguments. The applicant shall refile Exhibit E (25A) to remove emails that postdate the April 24, 2025, meeting.

g. Paragraph 39 and Exhibit E(27)

[29] This evidence refers to a community member who appeared at the public meeting who happens to be a City employee. The affidavit alleges that the resident ought to have disclosed that he was employed by the City. I disagree. Private citizens are entitled to take and express positions as private citizens. Their views are not to be subject to attack by other members of the community, nor are ill motives to be insinuated with absolutely no evidence to support such motives, because of where they happen to work. Paragraph 39 and exhibit E(27) are irrelevant and inflammatory and are struck.

h. Paragraphs 40 to 46, Exhibits (28A) to 28(g)

[30] The affiant annexes a series of documents and reports related to 7-9 Wardlaw Crescent, including geotechnical investigations, architectural plans, an arborist report, and other technical reports. The City objects on the basis that these documents were not before Council. However, the applicant wishes to argue that these documents ought to have been before Council, and that Council improperly made its decision on the basis of incomplete information. The use or admissibility of this evidence is properly left to the panel.

Affidavit of Dianne Chester

[31] Ms. Chester is part of a community group that had opposed a different City development. She annexes presentations made by the community group and communications the group undertook.

[32] As noted above, Agneca acknowledges that the only decision under review, and the only decision that can be affected by the application for judicial review, is the bylaw amendment with respect to Wardlaw Crescent. The reference to the other projects is intended to support its position that the City’s bias is demonstrated by a pattern of behaviour.

[33] The affidavit of Ms. Chester should be constrained to this point. Care should be taken at this stage to ensure the application does not turn into a detailed examination of other City projects. Argument is also not permissible; the affidavit should be confined to facts. Therefore, the following paragraphs of Ms. Chester’s affidavits are struck, with their attached exhibits: paragraphs 3-8 inclusive, paragraph 9 starting at “This failure to engage” until the end of the paragraph, paragraphs 10, 12-15, 18-31.

Affidavit of Pat Giglio

[34] Mr. Giglio’s affidavit attaches a statement that he swears he believes to be true. The statement expresses his concerns about a proposed shelter on Sheppard Avenue West. Paragraph 5 of the statement refers to the lack of consultation regarding that proposed shelter. It is the only potentially relevant paragraph in his materials. The affidavit of Mr. Giglio is struck. The applicant has leave to file another affidavit from Mr. Giglio that, in properly sworn form, identifies his connection to the Sheppard Avenue West location and includes paragraph 5 of his statement.

Affidavit of George Teichman

[35] Mr. Teichman’s affidavit is similar to that of Mr. Giglio. The first part of his statement explains who he is and his concerns about the consultation with respect to the Sheppard Avenue West Shelter. That is followed by opinion and argument about the wisdom of that shelter.

[36] Mr. Teichman’s affidavit is struck. The applicant has leave to file another affidavit from Mr. Teichman that incorporates his statement, in sworn form, up to “fait accompli” at the end of number 2) of his statement.

Affidavit of Amanda Schwartz

[37] This affidavit takes the same form as that of Mr. Giglio and Mr. Teichman and relates again to the Sheppard Avenue West shelter. Much of Ms. Schwartz’s statement is very specific and detailed about the Sheppard Avenue West shelter. Although Ms. Schwartz makes statements about a lack of “standard and uniform and expected procedure”, she provides specific criticisms of the procedure used in the Sheppard Avenue West consultation (break out rooms, unsatisfactory question and answer period, a flawed survey, poor experience with the project director). I do not see any portion of her statement as being extractable in a way that would make it relevant to his application. The affidavit of Amanda Schwartz is struck.

Affidavit of Dale Fitzgerald

[38] Mr. Fitzgerald’s affidavit attaches a statement in opposition to a proposed shelter on Gerrard Street East. It contains significant amounts of opinion and argument about the City’s Shelter and Support Services Division. Mr. Fitzgerald’s affidavit is struck. The applicant may refile an affidavit of Mr. Fitzgerald that identifies his connection to the Gerrard Street project, and that swears to the information contained in the third full paragraph of his statement, starting at “The shelter location was selected without any previous community engagement” and ending at “how this shelter can be successful.”

Affidavit of Aldo Di Felice

[39] Mr. Di Felice’s affidavit follows the same form. His statement expresses his concern about and opposition to the City’s March 2021 decision to destroy treed parklands for a “modular homes” project. His statement is somewhat vague. As with the others, the use, if any, to which potentially relevant portions may be put is for the panel to determine. His affidavit is struck with leave for the applicant to file an affidavit from Mr. Di Felice that identifies his connection to the property to which he refers, and swears to the contents of the fourth paragraph of his statement, that begins “On March 10, 2021” and the first two sentences of the next paragraph, up to “locations in Toronto.”

Disposition

[40] The following evidence is struck:

a. Affidavit of Tamara Schlosser

i. The portion of paragraph 11 from “this directly contravenes the principles of natural justice” to “lastly, it is also connected”;

ii. The penultimate sentence of paragraph 22;

iii. Paragraphs 27 and 28, and Exhibit E(20A);

iv. Paragraph 29 and Exhibit E(20B);

v. Paragraph 35 and Exhibit E(25B);

vi. Paragraphs 36-38 and Exhibit E (26);

vii. Paragraph 33 and Exhibit E (24);

viii. Those portions of Exhibit E (25A) that postdate the April 23, 2025, meeting;

ix. Paragraph 39 and exhibit E(27)

b. Affidavit of Dianne Chester:

i. Paragraphs 3-8 inclusive;

ii. Paragraph 9 starting at “This failure to engage” until the end of the paragraph;

iii. Paragraph 10;

iv. Paragraphs 12-15;

v. Paragraphs 18-31;

vi. All exhibits annexed to these paragraphs.

c. Affidavit of Pat Giglio

i. The affidavit is struck. The applicant has leave to file another affidavit from Mr. Giglio that, in properly sworn form, identifies his connection to the Sheppard Avenue West location and includes paragraph 5 of his statement.

d. Affidavit of George Teichman

i. Mr. Teichman’s affidavit is struck. The applicant has leave to file another affidavit from Mr. Teichman that incorporates his statement, in sworn form, up to “fait accompli” at the end of number 2) of his statement.

e. Affidavit of Amanda Schwartz is struck in its entirety.

f. Affidavit of Dale Fitzgerald

i. Mr. Fitzgerald’s affidavit is struck. The applicant may refile an affidavit of Mr. Fitzgerald that identifies his connection to the Gerrard Street ue project, and that swears to the information contained in the third full paragraph of his statement, starting at “The shelter location was selected without any previous community engagement” and ending at “how this shelter can be successful.”

g. Affidavit of Aldo Di Felice

i. Mr. Di Felice’s affidavit is struck with leave for the applicant to file an affidavit from Mr. Di Felice that identifies his connection to the property to which he refers, and swears to the contents of the fourth paragraph of his statement, that begins “On March 10, 2021” and the first two sentences of the next paragraph, up to “locations in Toronto.”

[41] The parties agreed that the unsuccessful party would pay the successful party $9,000 inclusive in costs. The City was largely, but not wholly, successful. I therefore order the applicant to pay the City $7,0000 in costs inclusive of disbursements and HST.

L. Brownstone J.

Released: March 11, 2026