Minister of Transportation v. 1520658 Ontario Inc. [Indexed as: Ontario (Minister of Transportation) v. 1520658 Ontario Inc.]
100 O.R. (3d) 619
2010 ONCA 32
Court of Appeal for Ontario,
LaForme J.A. (In Chambers)
January 19, 2010*
- This judgment was recently brought to the attention of the editors.
Appeal -- Leave to appeal -- Issue of public importance -- Party seeking leave to appeal to Court of Appeal entitled to file factual evidence directed at issue of public importance -- Party required to file motion to admit evidence and supporting affidavit with application for leave to appeal.
On its motion for leave to appeal a decision of the Divisional Court, the appellant filed an affidavit containing evidence directed at the issue of public importance. The respondent took the position that it was not entitled to do so as any material filed on a leave motion must already exist within the file.
Held, the appellant should file a motion to admit evidence.
A party seeking leave to appeal is entitled to file evidence directed at the issue of public importance, so long as the affidavit is limited to factual information. It must not contain expert legal opinion to the effect that the issue between the parties raises questions of public importance. It is not necessary that any material filed on a leave motion already exist within the court file. However, the party seeking to adduce evidence on the matter of public importance should file a motion to admit evidence on the matter and a supporting affidavit with the application for leave to appeal.
RULING on whether the appellant is entitled to file evidence directed at issue of public importance on the motion for leave to appeal.
Cases referred to Iness v. Canada Mortgage and Housing Corp. (2002), 2002 CanLII 15707 (ON CA), 62 O.R. (3d) 255, [2002] O.J. No. 4334, 220 D.L.R. (4th) 682, 166 O.A.C. 38, 118 A.C.W.S. (3d) 620 (C.A.), folld Other cases referred to Ontario (Minister of Transportation) v. 1520658, [2009] O.J. No. 4475, 90 M.V.R. (5th) 253 (Div. Ct.); Sault Dock Co. and Sault Ste. Marie (City) (Re), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479, [1972] O.J. No. 2069, 34 D.L.R. (3d) 327 (C.A.); United Glass and Ceramic Workers of North America (Re), 1973 CanLII 459 (ON CA), [1973] 2 O.R. 763, [1973] O.J. No. 1957, 35 D.L.R. (3d) 247 (C.A.) [page620] Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(a) Mining Act, R.S.O. 1990, c. M.14, ss. 1(1), 27(a), 35 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.03(2), (vii)
Orlando Da Silva, for appellant (moving party). Richard D. Butler and Nicole Melanson, for respondent (responding party).
[1] Endorsement of LAFORME J.A. (In Chambers): -- Should a party seeking leave to appeal to this court be entitled to file evidence directed at the issue of public importance? The Minister of Transportation (the "MTO") argues in the affirmative while 1520658 Ontario Inc. ("152") says the opposite.
Background
[2] The MTO planned to expand an existing highway into the Sudbury mining division. By February 2003, the MTO had placed survey stakes into the ground, dug boreholes and cut vegetation along a proposed route. Later that year, 152 staked its mining claim on lands that partially overlapped those surveyed by the MTO. The MTO applied to [the] Superior Court for a declaration that the company's claims were invalid or, alternatively, that the company was a tenant of the Crown whose tenancy could be terminated upon notice. The matter was transferred to the Mining and Lands Commission on consent in January 2007.
[3] The key question before the Commission was whether or not the lands were in the "actual use or occupation of the Crown" at the time the company staked its claim. [See Note 1 below] It concluded that the lands were not; the work performed by the MTO connoted preliminary planning and was not indicative of "actual use". In reaching this conclusion, the Commission noted that the MTO [page621] had not applied under s. 35 of the Mining Act to withdraw the land from prospecting.
[4] The MTO appealed to the Divisional Court. By an order dated October 16, 2009, the court upheld the decision as reasonable [[2009] O.J. No. 4475, 90 M.V.R. (5th) 253 (Div. Ct.)].
[5] The MTO now seeks leave to appeal to this court. It submits that the proposed appeal raises two issues of public importance: (1) what is the appropriate standard of review on an appeal as of right from a decision of an administrative tribunal, and (2) what is the proper interpretation of the words "actual use or occupation" under the Mining Act?
Background to the motion
[6] The MTO served a notice of motion for leave to appeal on October 30, 2009. As the deadline approached, the motion record had been served but the materials were not complete because the requisite factum had neither been concluded nor approved for service. This, the MTO says, was due to the "press of other matters" and the internal requirements for approval.
[7] As a consequence, the MTO found itself out of time to file its factum and motion record and brought a motion to extend the time for doing so. On December 22, 2009, the MTO advised 152 that its materials were complete and that it may not be necessary to attend the motion, which was scheduled to be heard on December 29, 2009.
[8] 152 took the position that it would be necessary to proceed with the hearing of the motion because the materials contained an affidavit of P. Lecoarer that "contained new evidence that was not before the Divisional Court". The MTO said the affidavit merely provides evidence of public importance, which is vital to obtaining leave in the circumstances of this case.
[9] Given this disagreement, the hearing of the motion to extend time proceeded.
[10] On the day that I heard this motion, the MTO advised that it had filed its materials for the motion for leave with this court, including its factum and the impugned affidavit of P. Lecoarer. 152 objects solely to the inclusion of the affidavit. In all the circumstances, I instructed the MTO to remove its leave materials from the court until such time as I ruled on the admissibility of the affidavit.
[11] I pause to point out that I have had only the benefit of oral argument without the assistance of a factum from either party. I also note that there is little authority on the contentious issue, namely, the appropriateness of evidence of public importance on motions for leave to appeal. [page622]
Analysis
[12] Under s. 6(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, leave to appeal from a decision of the Divisional Court will only be granted on a question that is not a question of fact alone. Matters considered in granting leave include (a) whether the Divisional Court exercised appellate jurisdiction (in which case the applicant for leave is seeking a second appeal) or whether the Divisional Court was sitting as a court of original jurisdiction; (b) whether the appeal involves the interpretation of a statute or regulation, including its constitutionality; (c) the interpretation, clarification or propounding of some general rule or principle of law; and (d) whether the interpretation of the law or agreement in issue is of significance only to the parties or whether a question of general interest to the public or a broad segment of the public would be settled for the future: United Glass and Ceramic Workers of North America (Re), 1973 CanLII 459 (ON CA), [1973] 2 O.R. 763, [1973] O.J. No. 1957 (C.A.); Sault Dock Co. and Sault Ste. Marie (City) (Re), 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479, [1972] O.J. No. 2069 (C.A.).
[13] In Iness v. Canada Mortgage and Housing Corp. (2002), 2002 CanLII 15707 (ON CA), 62 O.R. (3d) 255, [2002] O.J. No. 4334 (C.A.), at para. 8, Weiler J.A. confirmed that this court may grant leave to file affidavit evidence on a motion for leave to appeal in appropriate circumstances. At para. 11, she went on to make the following clear:
Any affidavit submitted on the issue of public importance should limit itself to factual information. Otherwise, expert legal opinion to the effect that the issue between the parties raises questions of public importance is inappropriate as this is the very issue for the court to decide on the leave application.
[14] In other words, an affidavit submitted on a motion for leave to appeal must only be directed toward facts that speak to the public importance of the issues raised. It must not contain opinion that the proposed appeal raises issues of public importance, since that is the very question to be answered on the motion for leave.
[15] Counsel for 152 argues that although Weiler J.A. correctly considered rule 61.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 -- which describes the contents of the motion record for leave to appeal -- she did not consider the precise [page623] language used. Specifically, he points to the language in rule 61.03(2)(vii): "a copy of any other material in the court file that is necessary for the hearing of the motion" (emphasis added). He says that the rule therefore requires that any material filed on a leave motion must already exist within the court file. I disagree.
[16] Weiler J.A. essentially relied on two reasons for her conclusion in Iness. First, she noted, in para. 7, that rule 61.03(2) "does not state that the motion record cannot contain any other materials". Second, as she observed in para. 9:
The Rules of the Supreme Court of Canada, S.O.R./2002-156, s. 25(1)(b) expressly permit the filing of "any affidavits in support of the application for leave to appeal." No separate leave is required to file such an affidavit, though the responding party may make a motion to strike the affidavit out if it is not relevant or contains improper submissions: Ballard Estate v. Ballard Estate, [1991] S.C.C.A. No. 239.
[17] Weiler J.A. concluded that "[i]n the absence of any rule expressly permitting the filing of an affidavit concerning the issue of the public importance of an appeal . . . the matter is discretionary and leave must be obtained". In my view, none of the submissions advanced by 152 compel me to conclude that Iness is wrongly decided. To the contrary, I agree with her reasoning and her conclusions.
[18] Finally, and importantly, at para. 15 of Iness, Weiler J.A. described the procedure to be followed where a party seeks to adduce evidence of public importance on a motion for leave to appeal to this court. Given the way in which this matter proceeded before me, I believe it is worth repeating:
[T]he party seeking to adduce evidence on the matter of public importance should file a motion to admit evidence on the matter and a supporting affidavit with the application for leave to appeal. Similarly, any response to the affidavit should be filed with the responding materials on the leave motion. The panel hearing the application for leave to appeal would then consider the motion to admit the evidence on the issue of public importance when considering the leave application. Motions to strike affidavits and motions to cross-examine on such affidavit material would properly be made to the chambers judge.
[19] The MTO has not followed the procedure set out in Iness, in spite of Weiler J.A.'s instructions that in the future all parties should do so. That is, it did not seek leave to admit the affidavit evidence of P. Lecoarer on the issue of public importance. In addition, in the hearing before me, 152 largely limited its submissions to a challenge of the correctness of Iness. Accordingly, although there was some argument on the content of the affidavit, I cannot say that it amounted to a full and complete argument to strike; fairness in these circumstances dictates that the procedure set out in Iness be complied with. [page624]
Conclusion
[20] In sum, Iness reflects the current law in Ontario where a party wishes to adduce affidavit evidence of public importance on a motion for leave to appeal to this court. Accordingly, the MTO is required to file a motion to admit evidence on the matter and a supporting affidavit with its motion for leave to appeal. In the meantime, leave is granted to the MTO to extend the time to file its factum and motion record to January 29, 2010.
[21] If 152 wishes to respond to the motion to admit the evidence of public importance, it should do so on the leave to appeal motion. The panel hearing the leave motion will consider the motion to admit the evidence on the issue of public importance at the same time. In the interim, motions may be made to a chambers judge to strike or cross-examine the affidavit evidence of public importance.
[22] Given the circumstances and results of the proceedings before me, I make no award of costs.
Order accordingly.
Notes
Note 1: Section 27(a) of the Mining Act, R.S.O. 1990, c. M.14 provides that the holder of a prospector's license may prospect for minerals and stake out a mining claim on any Crown lands, surveyed or unserveyed. Section 1(1) provides that "Crown land" does not include "land in actual use or occupation of the Crown".