Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 17, 2022

CASE NO(S).: OLT-22-002019 (Formerly DC180020)

PROCEEDING COMMENCED UNDER section 14 of the Development Charges Act, 1997, S.O. 1997, c. 27

Appellant: Durham Region Home Builder's Association

Subject: Development Charges By-law No. 50-2018

Municipality: Town of Ajax

OLT Case No.: OLT-22-002019

Legacy Case No.: DC180020

OLT Lead Case No.: OLT-22-002019

Legacy Lead Case No.: DC180020

OLT Case Name: Durham Region Home Builder's Association v. Ajax (Town)

Heard: February 7, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel
Durham Region Home Builders’ Association (“Association”)	Jennifer Meader
Town of Ajax (“Town”)	Andrew Biggart

DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL

INTRODUCTION – THE PROCEEDING AND THE MOTION

1This Decision determines the motion brought by the Association, which was scheduled by the Tribunal in its Decision and Order issued on December 22, 2021. A decision on the motion is required for the hearing commencing on Tuesday, April 19, 2022.

2The Association has appealed the Town’s Development Charges By-law No. 50-2018 (“DCBL”) pursuant to s. 14 of the Development Charges Act, 1997 (“DC Act”).

3The remaining two issues in the Hearing, which are relevant to the determination of this motion, are as follows:

Issue 3 – Is it fair, reasonable, and in accordance with the DC Act, to apply funds received through the Federal Gas Tax Program only to the non-growth share of the capital costs for projects included in the DCBL?

Issue 6 - For the active transportation projects, is the “Benefit to Existing Development” and “Post Period Benefit” fair, reasonable and in accordance with the DC Act?

4The Appeal has been case managed and a Procedural Order and Issues List dated September 25, 2019, governs the obligations of the Parties as to pre-hearing disclosure and other procedural requirements for the hearing.

5Paragraphs 11, 13, 15 and 19 of the Procedural Order set out the commonly seen requirements for the exchange of witness statements and reply witness statements, consistent with the provisions relating to the prefiling of Witness Statements and Reports in Rule 7.4 of the Tribunal’s Rules of Practice and Procedure (“Tribunal’s Rules”) The excerpted relevant paragraphs of the Procedural Order in this case are as follows:

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. On or before September 16, 2021, the parties shall provide copies of their witness and expert witness statements to the other parties and to the LPAT case co-ordinator and in accordance with paragraph 22 below.

13. On or before October 18, 2021, the parties shall provide copies of their Reply witness statements and expert’s Reply Witness Statements, if any, to the other parties in accordance with paragraph 22 below.

14. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal.

6The Parties exchanged their witness statements in accordance with the Procedural Order. The Association’s expert witness statements included those of Audrey Jacob, a land economist, and Michael Dowdall, a transportation planner. The Town also filed reports on behalf of two witnesses in the same fields of expertise: a land economist, Andrew Grunda and Brett Sears, a transportation planner.

7It is the Reply Witness Statements filed by Messrs. Grunda and Sears that are the subject of the motion before the Tribunal (“Motion”). Those certain portions of the Reply evidence, which the Association seeks to strike on the basis that such evidence is not proper reply evidence, are identified in its Motion Record. The content of that Reply evidence, which the Association wishes to strike, is as follows:

(a) Paragraphs 2.2.1 to 2.2.10 together with documents referenced in paragraphs 2.2.9 and 2.2.10 within the Reply Witness Statement of Andrew Grunda submitted on October 24, 2021 (the “Grunda Reply”);

(b) Paragraphs 3.8.2, 3.8.3, 3.8.4 and 3.85 of the Grunda Reply together with the table located in paragraph 3.8.3;

(c) Paragraphs 5, 6, 7, 8, 10, 11, 13 and 14 in the Reply Witness Statement of Brett Sears dated October 18, 2021 (the “Sears Reply”).

The content of the Grunda Reply and Sears Reply, which is the subject of the Motion, will collectively be referred to as the “Disputed Reply Evidence”.

8There is very little that is factually in dispute and the determination of the Tribunal on the issues raised by the Parties is fundamentally based upon the analysis of the Reply Witness Statements by the Town within the context of the issues, the pre-hearing processes under the Procedural Order of the Tribunal issued on May 20, 2021 and the evidence proposed to be introduced by the Parties at the hearing of the Appeal. The Affidavits filed by the Town in support of its position on the motion do assist in providing explanations as to why certain matters were not addressed in the initial witness statements and why material was included in the Disputed Reply evidence.

MATERIAL FILED ON THE MOTION

9For the purposes of the motion before the Tribunal, the following material was received:

(a) The Motion Record of the Association dated January 7, 2022 including the Affidavit of Meredith Baker sworn January 7, 2022;

(b) The Responding Motion Record filed on behalf of the Town dated January 26, 2022 including the Affidavits of Andrew Grunda, Brett Sears and Kacie Layton, all sworn on January 26, 2022;

(c) The Reply of the Association dated February 2, 2022; and,

(d) The Book of Authorities filed by the Association.

10The Tribunal received and considered full oral submissions from counsel for both parties.

ISSUES ON THE MOTION AND POSITIONS OF THE PARTIES

11The Tribunal is required to determine whether each of the portions of the Disputed Reply Evidence is, or is not, proper Reply Evidence.

12The Association argues that all of the Disputed Reply evidence fails to adhere to the law of proper reply and is directly responsive to the Issues List rather than responsive to matters newly raised in the Association’s expert’s report or which could not have been reasonably anticipated. The Town’s position is that the Disputed Reply Evidence is not improper and is within the parameters of the law of proper reply evidence as it is necessary to address new matters or concerns raised in the expert’s reports filed by the Association’s expert witnesses in relation to the two broadly stated issues.

13If any portion of the Disputed Reply Evidence is found by the Tribunal not to be proper Reply Evidence, is the Tribunal required, or is it appropriate, to grant the remedy requested and strike the improper Reply evidence?

14As the Motion has been argued and considered, from the Tribunal’s viewpoint, this has raised the following matters requiring analysis and consideration:

(a) Identifying the objectives of the pre-hearing disclosure requirements for an expert’s reports under the Tribunal’s Rules and legislation;

(b) the treatment of reply evidence within both the pre-hearing stage and in a hearing;

(c) the concept of “splitting the case” of a party and the nature of the rule that prevents a party from doing so when reply evidence is called in a hearing;

(d) the considerations at play when examining the propriety of a reply witness statement produced before the hearing, and whether this also constitutes a “splitting of a party’s case”;

(e) how a party may be prejudiced if its reply expert witness statements disclosed under the Tribunal’s Rules and a Procedural Order are struck and thus, excluded from consideration at the hearing on the merits; and

(f) how a party may be prejudiced if the content of a reply witness statement that is not proper reply evidence is received by that party from the opposing party, and is there a remedy that may address such prejudice beyond striking the offending content of the reply witness statement.

15It is the position of the Association that based upon both Court and Tribunal decisions, all of the Disputed Reply Evidence, deemed to be improper reply evidence, should be struck. The Association has identified the following principled bases for the improper filing of reply evidence, which supports the relief sought:

1. The rule preventing a party from raising new matters as reply evidence prevents unfair surprise, prejudice and confusion that can result if the party is allowed to “split its case” and later put forth additional evidence to add to the position first advanced or to reconfirm the original opinions provided in the witness statements filed earlier.

2. Such conduct is prejudicial to the other parties who are entitled to know the case they have to meet and respond with their Reply evidence as to what has been provided in the first instance.

3. Rule 7.4 sets out a process requiring opinions on issues and complete reasons, and supports the principle that a party is to put its complete case forward in its initial witness statements and may not split its case by saving some of the evidence if it intends to rely upon for reply.

16The Town’s position is that:

1. The cases, and principled approach, referred to by the Association in support of its submission that the Disputed Reply Evidence offends the rule against splitting a party’s case, relates to the actual hearing of the matter and not to pre-filing requirements;

2. There is no prejudice to the Association caused by the Disputed Reply Evidence. Full disclosure of the opinions and evidence of the experts have been provided.

3. If any content in the Disputed Reply Evidence was technically determined not to be reply evidence, the opportunity of sur-reply was offered, and is available which will remedy any possible prejudice, if there is any.

4. Conversely, there will be significant prejudice to the Town if the Disputed Reply Evidence is struck and the Town is unable to fully respond to the issues identified in the Appeal.

5. The Tribunal’s Rules mandate the requirement for disclosure of the expert’s opinions and evidence in advance of a hearing so that the parties do know the case they are to meet. This also serves to provide the Tribunal with all necessary evidence necessary to adjudicate the issues before it, and to serve the public interest.

ANALYSIS AND DISPOSITION

17The Tribunal has considered the explanations provided by Mr. Grunda and Mr. Sears in their Affidavits, and has considered the original witness statements they filed, those witness statements filed by the Association’s similar-discipline experts, and the Reply Witness Statement.

Paragraphs 2.2.1 to 2.2.10 of the Grunda Reply and Documents referenced in 2.2.9 and 2.2.10

18These paragraphs address Issue 3, which, in Mr. Grunda’s initial Witness Statement, had been addressed in paragraphs 3.1.1 to 3.1.5. Mr. Grunda’s explanation is that it was only when he received the witness statements of Ms. Jacob and Mr. Dowdall that the evidence on Issue 3 was expanded upon to provide suggestions as to how they thought the Town’s DCBL should be changed, which presented a more specific and pointed concern than what was set out in Issue 3, as worded. Mr. Grunda indicates that he thus found it necessary to respond.

19Seven of the ten paragraphs in this section, paragraphs 2.2.1 to 2.2.7 are quoted sections of the DC Act, which Mr. Grunda provides to support his conclusion as to why the Town has operated as it has under the relevant statutory provisions. In the Tribunal’s view, to the extent that these opinions are based upon the cited sections related to Issue 3 and which explain why the Federal Gas Tax funds should not be applied equally to both existing and future residents, and why the Town has operated as it has under the relevant statutory provisions, such content could arguably have been anticipated to have been necessary to address Issue 3, and included in the primary witness statement. That being said, the Association’s issue, as provided, did not posit the additional issue: “If not, how should the Federal Gas Tax funds be apportioned/allocated?” which was addressed by Ms. Jacob with specificity and responded to by Mr. Grunda. Given the manner in which the Issue is worded, the Tribunal is inclined to accept that the precise method of allocating the content required to be disclosed between Mr. Grunda’s initial Witness Statement and his Reply Witness Statement is perhaps not so easily discerned.

20Ms. Jacob did specifically address the example of the Audley Recreation Centre, in the context of whether the Federal Gas Tax Funds are provided to the Town for a specific project or a specific capital cost. In the Tribunal’s view, as explained by Mr. Grunda, responding to this part of Ms. Jacob’s statement would represent proper reply evidence to an example addressed in Ms. Jacob’s witness statement.

21The Tribunal is of the view that some aspects of these paragraphs could conceivably have properly been included in the subject matter of Mr. Grunda’s initial witness statement, rather than dealt with in Reply. However, the general form of the Issue did not necessarily call for specificity or exactness on all matters such as the apportionment of funds. The Tribunal would be inclined to grant the benefit of doubt to Mr. Grunda that these paragraphs, and the referenced Municipal Funding Agreement and the Association of Municipalities Ontario document on the subject of the Federal Gas Tax, do represent proper reply evidence. In reviewing Mr. Grunda’s explanations as to why he responded as he did in his Reply statement, the Tribunal is unable to conclude that they are disingenuous or contrived to explain away their non-inclusion in his initial Witness Statement.

22Aside from the Tribunal’s finding that Mr. Grunda’s answers were responsive to the Association’s expert and therefore proper Reply evidence, the receipt of the Reply Witness statements should, in any event, be received and permitted for the additional reasons set out below relating to: the distinction between reply witness statements in the pre-hearing disclosure processes and the introduction of reply evidence in the penultimate hearing; the objectives of pre-hearing disclosure; and matters of prejudice.

Paragraphs 3.8.2, 3.8.3, 3.8.4 and 3.8.5 of the Grunda Reply and the Table in Paragraph 3.8.3

23Paragraphs 3.8.2 and 3.8.3 within the Grunda Reply address Issue 6. The Tribunal has reviewed paragraphs 27 to 34 of Mr. Grunda’s Affidavit and is inclined to accept his explanations for providing the content in these paragraphs to address the specificity of what was provided in Ms. Jacob’s witness statement.

24Under the procedural processes for disclosure, although each expert witness must set out what evidence he or she considers relevant to address an issue before the Tribunal, provide opinions and conclusions based upon expertise, and explain the reasons for such opinions and conclusions, that expert may not necessarily anticipate each and every factual basis, example, opinion, or aspect of critical analysis that the other Party’s witness may provide in their primary witness statement. Experts may approach an issue from a different perspective, relying upon different facts and information such that they may not necessarily predict or anticipate all content that they wish to rely upon in support of their opinions or conclusions. The Reply Witness Statement is the opportunity to respond to such specifics, examples and analysis and explanations proffered by the other expert witness but not, to that point, yet dealt with by the replying expert.

25With that in mind, the Tribunal has noted the submission of the Association that because portions of the Grunda Reply are “directly responsive” to Issue 6 (and similarly to Issue 3 above) they should properly have been contained in the primary witness statement and not the subject of the Grunda Reply. The Tribunal cannot agree that this restrictive and rather summary approach can always be logically or effectively used in isolation to determine whether the content in a Reply Witness Statement should instead have been in the primary witness statement. The entirety of all content within all Experts’ reports should be responsive and relevant to the issues. Logically, since the content of the party’s expert’s witness statement, to which a Reply is provided, must be responsive to the issues before the Tribunal, so too must the content of the Reply evidence then be responsive to those same issues. The Reply evidence should more specifically respond to the detailed factual bases, examples, specific opinions, or aspects of critical analysis employed by the other expert in their witness statement, but still be responsive to the issues.

26The fact that the Grunda Reply, in responding to a specific matter in the witness statements filed by the Association’s excerpts, may ultimately elaborate upon, or “bolster” the evidence already contained in Mr. Grunda’s primary witness statement does not, in and of itself, make it objectionable in the disclosure process. In the adversarial process, it is inevitable that the reply evidence will serve to reinforce the expert’s evidence already provided in the witness statement of first instance. This is to be distinguished from Reply evidence, which is wholly repetitious and merely revisits the same content already provided in the first Witness Statement, and is unrelated to what was set out in the opposing expert’s Witness Statement.

27In this case, the Tribunal has considered the content of Ms. Jacob’s primary witness statement relating to: what has occurred in other municipalities in relation to active transportation; the use of the proportionate share of existing and new net development relative to the Background Study for assessing Benefit to Existing Development for active transportation projects; the past practices of Mr. Grunda’s firm regarding active transportation; and the use of the proportionate share of the existing population relative to the total population when allocating active transportation. In the Tribunal’s view, the specificity of these aspects of Ms. Jacob’s primary report were “fair game” for responses within the Grunda Reply and responsive to Ms. Jacob’s witness statement, and responsive to the issues.

28Of importance to the Tribunal, and something that cannot be ignored in the analysis, is the fact that such content within the Grunda Reply also fairly provides disclosure to the Association, on a point-by-point basis, of what will be addressed by Mr. Grunda at the hearing, and represents compliance with the obligation of an expert witness under Rule 7.4(a) to provide all opinions on the issues, and the reasons that support their opinions and their conclusions, relevant to the issues raised and addressed by the other party (and their experts). The significant objective of fair disclosure is a benefit to the Association, the Tribunal and the effective and efficient conduct of the hearing.

The Sears Disputed Reply Evidence – All Paragraphs

29All of the evidence within the Sears Disputed Reply Evidence is directed to Issue 6. Mr. Sears, in his Affidavit, earnestly asserts that all of his responses do not merely elaborate on what was already contained in his Witness Statement but instead respond to the specifics of what was contained in both Ms. Jacob’s, and Mr. Dowdall’s witness statements.

30Like Mr. Grunda, it was Mr. Sears’ view that although he had provided an explanation supporting the Town’s allocation of the Benefit to Existing Development and Post Period Benefit for active transportation projects, it was only when the reports were filed by Ms. Jacob and Mr. Dowdall that he determined that there were more specific concerns being expressed and a position that the Benefit to Existing Development, for active transportation projects in the Background Study, should be based on the proportionate share of existing and new net development.

31Mr. Sears has deposed that paragraphs 3 to 6 of his Reply were directly responsive to Ms. Jacob’s opinions as to the appropriateness of using the proportionate share of the existing population relative to the total population in 2031. He also takes the position that he was responding directly to, and in some instances challenging and expanding upon his prior evidence (such as cost savings/reductions for both future and existing residents), to specifically address such things as: Mr. Dowdall’s opinions in paragraph 9; as Mr. Grunda did, the discussion and evidence of the Association’s witnesses regarding Audley Road as raised by Mr. Dowdall; Mr. Dowdall’s statements as to the total costs of the active transportation network; and, Mr. Dowdall’s evidence in paragraphs 7d and 7e of his Witness Statement as to linear growth.

32With this explanation, Mr. Sears has affirmed in his Affidavit that all of his Reply evidence, inclusive of the Disputed Reply Evidence, was dictated by, and directly in response to, the specific issues and suggestions raised in the witness statements of the Association.

33As with Mr. Grunda’s evidence, and the analysis set out above, the Tribunal is similarly of the view that although some aspects of Mr. Sears’ Reply evidence could conceivably have been anticipated to be necessary to address Issue 6 as crafted, and possibly included in the subject matter of his initial witness statement, rather than dealt with in Reply, it is nevertheless not so clearly delineated as improper Reply evidence as the Association argues. Neither is Mr. Sears’ Reply evidence entirely unresponsive to the Association’s expert witness statements, as the Association submits in this Motion.

34As noted above, the Tribunal is of the view that in preparation for the “battle of the experts” in the hearing, there is bound to be some elaboration and reiteration of the expert’s previous evidence again in the Reply statements, such that parts of the Reply evidence, when put under stringent examination and dissected, could have arguably been included in the originating witness statement. But if this elaboration or reiteration arises, as a matter of common sense, in the process of addressing the content of the other expert’s witness statement, the elaboration or repetition does not necessarily make it inadmissible and struck from introduction at the hearing. When this happens some “staggered release” of the expert’s evidence, as this has been categorized by the Association in argument of the Motion, is inevitable and not necessarily objectionable. To be workable, some measure of lenient flexibility should be considered by the Tribunal in determining whether the separate parts of the whole of an expert’s proposed evidence at the hearing should be in the first-instance witness statement or in the reply witness statement.

35Notwithstanding, this practical flexibility that should be permitted in the fleshing out of the experts’ reasons, opinions and conclusions in the pre-hearing disclosure phase of a proceeding, reply evidence cannot simply be a “rehashing” and repeating of the initial expert opinion, starkly disassociated from, or having only a tenuous and questionable connection to, anything contained in the other expert’s report. It must also be relevant to the issues and admissible. In cases where the Reply evidence is found to be repetitious, inadmissible or irrelevant, the Tribunal may exclude such content. As the Tribunal indicated, for example, in the case of 1066266 Ontario Ltd. v. Toronto (City) 2018 LNONLPAT 93, (the “1066266 Decision”), where portions of an expert’s Reply evidence merely ran through the opposing witnesses and attempted to point out inaccuracies of their evidence, or where other portions of the Reply Witness Statement were found to be improper hearsay evidence, and thus inadmissible, the Tribunal found it appropriate to strike such Reply evidence.

36It is the Tribunal’s conclusion, when examining the witness statements of Mr. Dowdall, and Ms. Jacob, and objectively considering the explanations provided by Mr. Sears, that Mr. Sears’ Reply evidence does not fall into the latter category of being wholly unresponsive to the witness statements of Mr. Dowdall or Ms. Jacob. Unlike the 1066266 Decision, the Disputed Reply Evidence cannot be categorized as mere lists of inaccuracies in the other party’s witness statements, nor is it inadmissible hearsay evidence. The Tribunal is inclined to accept Mr. Sears’ explanations as to why and how his Reply evidence is responsive. As with Mr. Grunda’s explanations, there is no reason to doubt the veracity of the earnest reasons provided by Mr. Sears for responding to the Association’s witnesses as he did. While some aspects of the Sears’ Reply Statement may constitute elaborations of opinions and evidence contained in his first witness statement, they are nevertheless, on the whole, provided in the overall context of appropriate responses to the Dowdall and Jacob witness statements.

37For the additional reasons that follow however, ultimately it is the manner in which Mr. Sears’ Reply Evidence, and Mr. Grunda’s Reply evidence, represent proper disclosure of the expert’s opinions, conclusions and reasons, in compliance with the intent of the pre-hearing disclosure obligations, that influences the Tribunal’s determination on this Motion.

The Primacy of Disclosure and the Remedy of Striking Reply Evidence

38Ultimately on this Motion, the Tribunal is most persuaded by the submissions of the Town, and the urgings of both Messrs. Grunda and Sears, that the primary objective is to ensure that the Tribunal, upon the hearing of the merits of the Appeal, properly receives and considers the totality of the experts’ opinions and reasons that support their opinions and their conclusions as required by Rule 7.4 of the Tribunal’s Rules, and the Procedural Order governing this Appeal.

39There is also, as the Town submits, a public interest mandate of the Tribunal, which underlies its adjudication processes that goes beyond the focused conflict between the parties. The issues in this Appeal, as they arise under the DC Act, very clearly transcend the interests of only the members of the Association or the Town itself and ultimately, affect the interests of the development industry and the municipality’s residents who are served by the effective, fair and reasonable implementation of the legislated governance of development charge processes, the Background Study, (including the proper application of funds received through the Federal Gas Tax program or the benefit treatment of active transportation projects) which are the focus of the two stated Issues before the Tribunal in this Appeal.

40In the Tribunal’s view, when balancing the possibility that some portions of a Reply Statement might instead have been better placed within the originating Witness statement against the objective of ensuring each party has full disclosure of the opinions, reasons and conclusions to be presented by the other side, and that all such evidence is properly before the Tribunal, the objective of adequate disclosure and presentation of the expert’s evidence must prevail over a need for exactness and precision as to whether those opinions, reasons and conclusions are correctly disclosed within the originating witness statement or within the reply witness statement.

41The Tribunal is of the view that the fundamental objective of the pre-hearing exchange of witness statements and reply evidence is focused upon proper disclosure. The Tribunal would take note that the primacy of this underlying disclosure pre-requisite to the presentation of an expert’s opinion at a hearing, in the Tribunal’s Rules reflects the same approach set out in in the Ontario Rules of Civil Procedure (Rule 53.03), the Ontario Evidence Act (s. 52), the Statutory Powers Procedure Act (s. 5.4(c)) and the Tribunal’s own home statute, the Ontario Land Tribunal Act, 2021 (s. 15(4).

42The requirement for mandatory disclosure is supported by the standard form of the Tribunal’s Procedural Order which provides, in this case, in paragraph 11 that “if [the preparation and delivery of reports or documents to be relied upon at the hearing] is not done, the Tribunal may refuse to hear the expert’s testimony”, and in turn, by Rule 7.4, which provides that “An expert may not be permitted to testify if this statement or report is not served on all parties when so directed by the Tribunal”. Disclosure of the expert’s report containing the opinions, reasons and conclusions of the expert is thus, fundamental to the hearing process.

43With this fundamental requirement, and the underlying public interest mandate of the Tribunal, the Tribunal must be cautious that it is not pedantic or intransigent in the compartmentalizing of the expert’s evidence during the disclosure process such that the mandatory disclosure of the expert’s relevant opinions, reasons and conclusions is frustrated by the fact that it may have been a staggered release of the material and it is disclosed in the reply process rather than the first-instance of disclosure. To strike portions of that disclosure by an expert is, in the Tribunal’s view, a severe remedy that should be granted cautiously when weighed against the primary objective of pre-hearing disclosure.

44Striking the content of Reply Witness Statements should be reserved for material in the Reply, which is clearly: (a) redundant or repetitive; (b) non-responsive to the issues and irrelevant; (c) inadmissible; or (d) is being proffered for the first time where the offending party has not, in good faith, adhered to the requirements of the Procedural Order requiring the filing of a witness statement. Failing to abide by the terms of the Tribunal’s Order and the Tribunal’s Rules interferes with the orderly and expeditious case management of a proceeding through the use of time lines and procedures for the exchange of witness statements and disclosure, and is designed to minimize time and costs for the parties.

The Distinction between Disclosure in Reply Witness Statements and the introduction of Reply Evidence in the Presentation of the Case

45The Association has relied upon a number of cases, and specifically, the decision of the Supreme Court of Canada in R. v. Krause 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, (the “Krause Decision”), which was referred to by the Tribunal in the 1066266 Decision in support of its argument that the Disputed Reply Evidence, if it is not proper reply evidence, must be struck. The Association submits that the Town is “splitting its case” by introducing new evidence in the Reply Witness Statements, which offends the “general rule” that “prevents unfair surprise, prejudice and confusion” that may result when a party puts in only “….part of its evidence – as much as it deemed necessary at the outset – then, to close the case, after the defence is complete, to add further evidence to bolster the position originally advanced.”

46However, the Court, in the Krause Decision, in considering the manner in which the murder trial was conducted, also emphasized that the underlying reason for this rule in the conduct of such a hearing, is that “the defendant or the accused is entitled at the close of the Crown’s case to have before it the full case for the Crown so that it is known from the outset what must be met in a response” (emphasis added). The Court noted that rebuttal evidence by the Crown “will be permitted only when it is necessary to insure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other.”

47Part of the procedural approach to limiting “reply” evidence in proceedings – whether it is a reply affidavit in a motion or application, reply disclosure, or reply evidence in a hearing – revolves around the need to prevent the argumentative “back and forth” that will occur if parties are repeatedly able to continue to respond to the other party ad infinitum.

48The rule against improper reply evidence within a hearing, particularly where it is collateral (i.e. neither material nor relevant to the main issues), more importantly exists as a significant element in the framework of procedural fairness in the hearing of the merits of the proceeding.

49The Tribunal has reviewed the various cases submitted by the Association, and has considered the submissions of both parties as to their application. The Tribunal is of the view that, in the context of the whole proceeding, there are important distinctions that exist between “reply” pre-hearing disclosure before a hearing begins and reply evidence in the hearing itself. The Tribunal’s analysis is as follows:

1. In the vernacular of a Tribunal appeal, (or any formal hearing for that matter) the presentation of a party’s “case” occurs only upon the opening of the hearing when the appellant makes the opening statement and undertakes the calling of witnesses and the presentation of the evidence. An appellant must close its case and confirm all evidence has been presented before the responding party begins to present its case.

2. Accordingly, it is incorrect to refer to a party “splitting its case” during the pre-hearing disclosure phase when the procedural requirements, as reviewed above, relate to the disclosure of an expert’s evidence to permit each party to know the case it must meet, including the proposed evidence, opinions and conclusions to be advanced by each expert. As the hearing has not yet commenced, a party is not really “splitting its case” by dividing the disclosure process.

3. The “ill” that is to be avoided by the rule preventing a party from splitting its case through the introduction of improper reply evidence, is the prejudice caused to the accused, appellant, applicant or plaintiff in the final presentation of the evidence. This includes a motion for leave to appeal (Guelph (City) v. Ontario (Ministry of the Environment, [2014] O.E.R.T.D. No. 14), or a hearing on any interim motion, or a final hearing on the merits where the first party has formally closed its case (Cham Shan Temple v. Ontario (Ministry of the Environment), [2015] O.E.R.T.D. No. 9) and where the presentation of each party’s “case” is undertaken for final determination of the issues. The Tribunal has distinguished those cases by the Association on this Motion where the refusal to receive or strike improper reply evidence in a hearing led to a ruling to prevent a “splitting of a party’s case”. They are not applicable to the facts on this Motion.

4. As the Town submits, the prejudice which arises in the calling of improper rebuttal evidence by the Crown in a murder trial, and the principles which apply to severely limit improper reply evidence during the last opportunity by the Crown to present evidence, is not present when an expert’s reply witness statement is being produced under a Procedural Order, which addresses the issues that are being placed before the Tribunal and eventually heard.

50The Town, in its submission, has made reference to a comment of the former Ontario Environmental Review Tribunal, in paragraph 63 of the Tribunal’s decision of Hirsch v. Ontario (Ministry of the Environment and Climate Change), [2016] O.E.R.T.D. No. 4, which recognizes that there are differences as to how reply statements are considered depending upon whether there are limited opportunities to a party to respond, or where oral testimony has yet to commence and parties still have opportunities to respond through oral testimony. The Tribunal stated: “Given the variety of situations in which the appropriateness of reply witness statements must be determined, the Tribunal takes into account such considerations as the nature and stage of proceedings and any prejudice that may arise by permitting the reply witness statements to be filed”.

Prejudice and the Opportunity for Sur-Reply from the Association

51Turning to the matter of prejudice, the Tribunal has considered the submission of the Association that it will suffer prejudice if the Disputed Reply evidence is not struck.

52The Tribunal cannot agree. The prejudice advanced by the Association is, in the Tribunal’s view, “principled prejudice” based upon the perceived offense of splitting the Town’s case through the disclosure of opinions and conclusions in the Reply Witness Statement that could have been advanced in the Witness Statement of first instance. That, as indicated, is not a correct categorization of the pre-hearing disclosure process.

53Objectively, the Tribunal has looked at the Motion materials and is unable to see any true prejudice to the Association save and except perhaps, applying a principled and stringent approach, that the Association’s expert witnesses have elected not to file a Reply Witness Statement containing responses to the Town’s expert Witness Statement on the assumption that the Tribunal would instead strike the Disputed Reply Evidence in this Motion. The Association has preferred to bring this Motion rather than agree to the Town’s proposal that the Association file Sur-Reply Witness Statements.

54Conversely, the Tribunal accepts the submission of the Town and finds that there would be significant prejudice to the Town, and to the general public interest in having the issues in this Appeal determined by the Tribunal, if the content of the Disputed Reply Evidence was not permitted and thus, available to guide Messrs. Grunda and Sears in the presentation of their evidence-in-chief at the hearing.

55Ultimately, it is the Tribunal’s view that any prejudice that might have been caused to the Association could have been, and can be, fully remedied by permitting it the opportunity to file Sur-Reply Evidence.

56The Tribunal cannot agree with the Association that, under the circumstances, that prejudice exists because it would be “inappropriate, inefficient and unfair to have new evidence and opinions introduced at the very last opportunity” (emphasis added) or that to do so would “prevent the Tribunal from disposing of matters expeditiously” such that the only remedy for infractions of the procedural requirements for the exchange of expert witness statements and reply is to strike the improper reply evidence. Pointedly, for the Tribunal, the ability to file Sur-Reply Witness Statements to the Disputed Reply Evidence by the Association effectively extends to the Association the very right to have the “last opportunity” for disclosure. That last opportunity was extended by the Town as a means to resolving the Motion.

57The Tribunal must pause to make the point that it certainly does agree with the Association’s submissions that adhering to the proper procedure with respect to the filing of evidence is essential for maintaining the integrity, efficiency and fairness of the hearing process. The Association has expressed concern that dismissing this Motion might be viewed as condoning the conduct of the Town and two of its expert witnesses. That is not the case.

58The analysis in this Decision, on this Motion, should not be interpreted to suggest that parties may flagrantly ignore the requirements for the pre-hearing disclosure of expert’s reports and witness statements contained within a binding Procedural Order of the Tribunal. Parties should not rely upon the primacy of ensuring full disclosure of all experts’ evidence in advance of a hearing and claim that it will be prejudiced by an order striking the reply evidence, as a “fall-back excuse” for being lax and failing to ensure that the first-instance witness statement fully and sufficiently responds to the issues in a robust fashion. Should a party knowingly defer or avoid the first delivery of the required reasons supporting the opinions and conclusions under Rule 7.4(b) to the Reply stage of disclosure, that party knowingly assumes the risks associated with such conduct. Failing, for example to provide a Witness Statement in accordance with the Procedural Order and instead filing only a Reply Witness Statement to address the issues in an appeal, which occurred in the pre-hearing disclosure addressed by the Tribunal in 2404099 Ontario Ltd. (JD Development Group) v. Markham (City), 2020 LNONLPAT 688, carries with it the risk of consequences that such reply-only witness statements will be struck.

59Similarly, if the Tribunal, on the facts, determines that the Reply Witness Statement can not arguably be demonstrated to be responding to the content of the other party’s Witness Statement dealing with broadly worded issues, and instead only repeats reasons, conclusions and opinions already set out in the Reply Witness Statement, or provides evidence irrelevant to the issues, or which is inadmissible, then it too may be struck.

60Given the manner in which this Motion has come before the Tribunal, and to ensure that there is no prejudice to the Association caused by its principled approach or failure to appreciate the distinction between “splitting a case” in a hearing, and dividing disclosure between a witness statement and a reply witness statement, the Tribunal will, in this case, grant the Association the opportunity to file sur-reply witness statements to those matters raised in the Reply Witness Statements of Messrs. Grunda and Sears that has not already been addressed within the Association’s Witness Statements or Reply Witness Statement already served and filed under the Procedural Order.

SUMMARY

61For the reasons indicated, and upon the analysis set out in this Decision, the findings, conclusions and disposition of the Tribunal on this Motion are as follows:

1. The Tribunal does not find that the content of the Disputed Reply Evidence is necessarily non-responsive to the Witness Statements filed by the Association.

2. Some portions of the evidence in their witness statements could, with better foresight, and further consideration of what was necessary to address the two issues, have been included in the respective Witness statements of Mr. Grunda and Mr. Sears. The Tribunal nevertheless finds, upon the whole of the material presented in this Motion, that the Reply Evidence of Messrs. Grunda and Sears is still responsive to the Issues that have been set out in the Procedural Order and accepts the genuine explanations provided by Mr. Grunda and Mr. Sears in their Affidavits as filed.

3. Although the Disputed Reply Evidence does logically elaborate upon the reasons for the opinions and conclusions set out in their Witness Statements, that evidence of Mr. Grunda and Mr. Sears, is not improper per se as it also does respond to specifics, examples, and concerns raised by Ms. Jacob and Mr. Dowdall in their Witness Statements. In all cases, the content of a Reply Witness Statement will be primarily responding to the issues but should also be seen as arising from the manner in which the opposing Witness Statement has been crafted by the expert based on his or her individual approach to the Issues and as responding to specific concerns, facts or statements received for the first time.

4. On the material filed in this Motion, the Disputed Reply Evidence is not otherwise improper as being: only duplicative of material already contained in the first witness statement; irrelevant; inadmissible; merely critiquing and identifying inconsistencies in the opposing expert witness statements and thus, more suited to a roadmap for cross-examination; or contained only within a reply witness statement, without an initial witness statement having been filed. As such, the Disputed Reply Evidence is not improper and should not be struck as was the case in the similar examples presented to the Tribunal.

5. The importance of disclosure during the pre-hearing exchange of evidence must prevail in this case. There would be prejudice to the Town, and to the public interest, if the Disputed Reply Evidence was struck and the evidence-in-chief of Messrs. Grunda and Sears, now fully disclosed, was restricted or excluded in the hearing on the merits.

6. The opportunity of Ms. Jacob and Mr. Dowdall to serve and file Sur-Reply Witness Statements will ensure there is no prejudice caused to the Association in the presentation of its case.

ORDER

62The Motion brought by the Association to strike the Disputed Reply Evidence is dismissed.

63The Association’s experts, Audrey Jacob and Michael Dowdall are granted the further opportunity to file Sur-Reply Witness Statements on or before Friday, April 1, 2022, responding to those matters raised in the Reply Witness Statements of Andrew Grunda and Brett Sears that have not already been addressed within their Witness Statements or Reply Witness Statement previously served and filed under the Procedural Order.

“David L. Lanthier”

DAVID L. LANTHIER VICE-CHAIR

Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.