CITATION: Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316

DIVISIONAL COURT FILE NO.: 528/10

DATE: 20120607

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

ADA LOCKRIDGE and RONALD PLAIN

Applicants

– and –

DIRECTOR, MINISTRY OF THE ENVIRONMENT, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AS REPRESENTED BY THE MINISTER OF THE ENVIRONMENT, THE ATTORNEY GENERAL OF ONTARIO and SUNCOR ENERGY PRODUCTS INC.

Respondents

Justin Duncan, Kaitlyn Mitchell, Margot Venton, for the Applicants

Jack Coop, Jennifer Fairfax, Lindsay Rauccio, for the Respondent, Moving Party, Suncor Energy Products Inc.

Lise Favreau, Kristin Smith, Robin Basu, Matthew Horner, for the Respondents, Director, Ministry of the Environment, Her Majesty the Queen in right of Ontario, as represented by the Minister of the Environment and the Attorney General of Ontario

HEARD at Toronto: January 31, February 1, February 2 and March 5, 2012

REASONS FOR DECISION

Harvison Young J.

Overview

[1] The applicants, Ada Lockridge and Ronald Plain, have commenced an application in which they seek judicial review of a decision made by the Director of the Ministry of the Environment (the “Director”) under the Environmental Protection Act, R.S.O. 1990, c. E.19 (the “EPA”), in April 2010, respecting the sulphur output of Suncor's Plant #4 Sulphur Recovery Unit in Sarnia. At the heart of their application is their claim that the failure of the Director to conduct a cumulative effects assessment prior to making his decision infringed the applicants’ s. 7 and s. 15 Charter rights, as well as their rights to procedural fairness.

[2] The government respondents include the Director, Ministry of the Environment, Her Majesty the Queen in right of Ontario, as represented by the Minister of the Environment and the Attorney General of Ontario. They will be referred to collectively as the Government respondents in these reasons.

[3] The respondents have brought two motions in respect of this application. First, the respondent Suncor Energy Products Inc. brings a motion to strike the application as a collateral attack on earlier approvals granted to it pursuant to the EPA regime. It submits that the applicants’ claims, in raising alleged health and emissions issues which predated the April 2010 Decision, constitute collateral attacks on earlier decisions, and particularly, the approvals relating to the construction of the sulphur production facility in 2004. For the reasons that follow, I would dismiss the motion to strike the application.

[4] Second, the respondents (the Government respondents as well as Suncor) bring a motion to strike some or all of the affidavit evidence filed by the applicants. They argue that as the issues in this application only relate to the April 2010 Decision, much of the evidence filed by the applicants respecting emissions that were not the subject of that decision, or the health effects allegedly flowing from those emissions, is irrelevant. In addition, they seek to strike considerable amounts of the evidence on the grounds that it constitutes improper opinion evidence, inadmissible hearsay, argument or speculation. This consumed the majority of the 4 days of oral argument taken for the three motions. As the following reasons set out, I have concluded that some portions of the evidence should be struck, although I would dismiss the motion with respect to much of it, without prejudice to the respondents’ right to argue the admissibility issues before the panel hearing the application on its merits.

[5] Finally, the applicants have brought a motion for a protective costs order insulating them, absent improper conduct during this litigation, from adverse costs if their application for judicial review is ultimately successful. For the reasons I set out below, I would dismiss this motion.

Background

[6] The applicants are members of Aamjiwmaang First Nation who have commenced this application in their individual capacities. Ms. Lockridge is a resident of Aamjiwmaang First Nation. Mr. Plain has lived there for much of his life but now lives in Sarnia. The applicants claim that the Decision violates their rights to procedural fairness, to life, liberty and security of the person pursuant to s. 7 of the Charter of Rights and Freedoms, and to equality pursuant to s. 15 of the Charter of Rights and Freedoms. The applicants claim that, because pollution surrounds their reserve community and has a significant impact on them, the Director should not have approved additional pollutant releases without considering the cumulative effects of all of the pollution.

[7] The applicants seek various relief, including declarations that the Decision violated their ss. 7 and 15 Charter rights and that the “Minister’s failure to apply the [Environmental Bill of Rights, 1993, SO 1993, c. 28 (the “EBR”)] in a manner that ensure that cumulative effects were considered and minimized when the Director made the Decision infringed the Applicants’ rights…”.

[8] Both the motion to strike the application and the motion to strike the evidence are grounded in the respondents’ submission that the application is, in substance, a challenge to the regulatory framework and, in particular, the absence of a cumulative effects assessment as part of the regular emissions approvals processes. The application is not, they assert, really a challenge to a particular administrative decision at all. To the extent that it is, it essentially impugns administrative approvals granted long before the April 2010 Decision to the extent that they allegedly contribute to the cumulative effects complained of. The applicants have been quite frank in acknowledging before the court that the general absence of cumulative effects assessment from the approvals process under the EPA framework is their driving concern.

[9] All the respondents argue that this systemic issue is not properly the subject of a judicial review application. Suncor seeks the dismissal of the application, arguing that in raising issues of pollution and emissions that predate the April 2010 Decision, it is essentially a collateral attack on approvals that Suncor had previously obtained in full compliance with the regulatory requirements, and upon which approvals it has relied since.

[10] The Government respondents do not seek the dismissal of the application, but do, along with Suncor, seek to strike the evidence filed which, they argue, goes far beyond the narrow scope of the judicial review of the 2010 Decision. They seek to have the evidence circumscribed or “scoped” to reflect the proper scope of a judicial review application.

[11] The issues raised in both Suncor’s motion to strike the application and the motion to strike the affidavit evidence overlap to some extent. I will address the two motions in turn, but it will be helpful to set out the April 2010 Decision and its context at the outset.

The April 2010 Decisions

[12] The applicants challenge two related decisions made by the Director under the EPA in April 2010 respecting the sulphur output of Suncor's Plant #4 Sulphur Recovery Unit in Sarnia. These are (1) Director’s Amending Order No. 1131-7DJ25B-A (“Amending Order”) dated April 1, 2010, and (2) the Director’s Notice of Revocation of the Ordered Items in the Amending Order dated April 30, 2010. These are collectively referred to as the “Decision” or as the “Director’s Decision”.

[13] The Director’s Amending Order and Notice of Revocation modified an administrative order which had been issued on April 15, 2008 (“the 2008 Order”), in response to the flaring from Plant #4. Emergency flaring is required in order to prevent quantities of hydrogen sulphide from being discharged into the atmosphere. The “flaring” converts the hydrogen sulphide into sulphur dioxide with the goal being to prevent the release of hydrogen sulphide directly into the atmosphere. This flaring, occurring shortly after the sulphur recovery units commenced operations in 2007, was necessitated by “process upsets”, which included unexpected failures of newly installed equipment, fabrication problems, design problems and a lack of operational experience (see affidavit of Peter Lynch, at para. 65-66). According to Suncor’s predictive modeling, these flares caused “exceedances” in the predicted level of sulphur dioxide from Plant #4. As a result, the 2008 Order capped sulphur production from Plant #4 at 145 tonnes/day. This was a reduction from the rate of 250 tonnes/day that had been approved under the Certificate of the Approval, which had been issued in 2004 (“Certificate of Approval”). These decisions were concerned exclusively with the production of sulphur at the Plant and with two substances emitted by the Plant: sulphur dioxide and hydrogen sulphide.

[14] The 2008 Order specifically directed that Suncor take action to ensure compliance with sulphur dioxide and hydrogen sulphide emissions standards following the flaring incidents. It did not address any other emissions from Plant #4, or any other facility.

[15] On April 1, 2010, the Director issued the Amending Order to amend the 2008 Order. That order recognized certain improvements made by Suncor since the flaring incident and directed Suncor to take extra measures to monitor and report to the Ministry with regard to the operations of Plant #4 to ensure compliance with government standards. The Director informed Suncor that when certain parts of the Amending Order were fully complied with, the Director would exercise his discretion and revoke the pre-amendment requirements of the 2008 Order. This would in effect permit an increase in sulphur production to 180 tonnes/day. Again, the Amending Order addresses only the issues of sulphur production and sulphur dioxide and hydrogen sulphide emissions from Plant #4.

[16] On April 30, 2010, the Director revoked the original 2008 Order but left certain portions of the Amending Order in effect, thereby authorizing an increase in sulphur production to a level of 180 tonnes/day at Suncor’s Plant #4. The two orders that comprise the impugned decisions are directed at ensuring that sulphur dioxide and hydrogen sulphide emissions are limited during both regular operation and acid gas flaring events at Suncor’s Plant #4.

[17] The Director did not purport to amend the Certificate of Approval (Air) for Plant #4, which had been issued on November 25, 2004. This Certificate of Approval allowed Suncor (subject to any prevailing orders) to produce 250 tonnes/day of sulphur from hydrogen sulphide in Suncor’s process streams.

[18] In short then, Suncor’s Certificate of Approval granted in 2004 had authorized sulphur production of 250 tonnes per day. This was superseded by the 2008 Order, which reduced the sulphur production to 145 tonnes/day. The Director’s Decision of April 2010 approved an increase to 180 tonnes/day, still within what Suncor refers to as the “envelope” that had been approved in 2004. Suncor’s position is that the 2008 Order was a temporary measure designed to control excess sulphur dioxide emissions while Suncor remedied the problems which had necessitated the emergency flaring.

[19] The applicants argue that the failure to consider the cumulative effect of the production increase authorized by the April 2010 Decisions in the circumstances constituted breaches of their ss. 7 and 15 Charter rights. The Application also alleges that the impugned decisions lacked appropriate jurisdiction under the EPA and that they were procedurally unfair, particularly because the applicants were not given notice of the 2010 Decisions.

I. The motion to strike the application

[20] The respondent Suncor seeks to strike the application, in whole or in part, as an improper collateral attack and an abuse of process. In the alternative, it seeks to quash or stay the application on the grounds of laches and undue delay.

[21] As Mr. Coop for Suncor readily acknowledged at the outset, the collateral attack argument is at the core of Suncor’s motion to strike the application. The abuse of process argument rests on the submission that the passage of time since the earlier approvals, as well as the fact that Suncor complied with the regulatory process in place in obtaining them, combine to render the application, to the extent that it is a collateral attack on prior approvals granted, an abuse of process. Similarly, the laches argument is not raised with respect to the April 2010 Decision, but with respect to the earlier decisions which Suncor submits are being collaterally attacked by the application.

[22] At the heart of Suncor’s motion to dismiss the application is the argument that, despite their claim that they are only challenging the April 2010 Decision, the wide-ranging evidence adduced by the Applicants challenges all of the contaminants emitted by both the Sulphur Plant and Suncor’s Sarnia Refinery as a whole. Suncor submits that their evidence questions the very right of the Sarnia Refinery to exist/operate at all without a cumulative effects assessment, and that, in light of this, it is disingenuous for the applicants to claim that they are only challenging the 2010 Decision.

[23] In substance, Suncor maintains, this application constitutes: (1) a collateral attack upon the Director’s decision in November 2004 approving Suncor to build and operate the Sulphur Plant; and, (2) a collateral attack upon all fifty of the refinery approvals granted by the MOE to Suncor over the past 30 years. Suncor also argues that despite multiple opportunities since November 2004 to initiate a challenge to the Environmental Review Tribunal (“ERT”) regarding the absence of a cumulative effects assessment, the Applicants have not done so. Suncor argues that the applicants had numerous opportunities to challenge the approvals that have been granted from 2004 forward. It argues that “lying in the weeds” until this point, and commencing this application as an “excuse” to undo the 2004 approvals, constitutes an abuse of process that should not be permitted by this Court. Suncor emphasizes, in particular, that its 2003 application (culminating in the Certificate of Approval) was posted on MOE’s Environmental Registry so as to provide the public with statutorily required notice of the project and a 30 day comment period. No comments were received from any members of the public. It submits that the April 2010 Decision simply reinstated a production level within an envelope that had been approved in 2004 after an extensive process, and with respect to which the applicants had not commented or objected at all despite having been notified of the issues at the time.

[24] The applicants counter that they do not seek to shut down Suncor’s entire refinery or any part of it. They submit that the relief sought is forward looking, stating that “Ada and Ron want their health to be protected when the government approves pollution”. At para. 33 of their factum on the Motion to Strike the application, they state,

[i]f Ada and Ron are successful in striking the Decision, the result will be the reinstatement of the 2008 officer’s control order that limited sulphur production at the Suncor refinery to 145 tonnes per day. Although it is conceded that the officer’s control order did not involve an assessment of cumulative effects, it is anticipated that Suncor will seek either a new Amending Control Order or an amendment to its certificate of approval from the Director and that the Government Respondents will then apply their discretion under the EPA in a manner consistent with the Charter.

The application also states that “in quashing the specific Decision at issue in this application, they seek to have such a process begin”.

[25] On a motion to strike an application, the threshold is a high one. Under Rule 21.01(3)(d), the moving party must show that it is plain and obvious that the application cannot succeed, particularly where a question of constitutional or Charter rights is concerned: see Miguna v. Toronto (City) Police Services Board, 2008 ONCA 799, 2008 CarswellOnt 7120, at para. 31; Fraser v. Canada (Attorney General), 2005 47783 (ON S.C.).

[26] Moreover, such a motion may not be turned into an evidentiary disposition. Suncor submitted that as it was also seeking a stay on the basis of s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the “plain and obvious” test as set out pursuant to Rule 21.01(3)(d) does not apply. It argued in the alternative that, even if this test applied, it had met the test.

[27] The test for a stay is also a high threshold to meet: see, e.g., Miguna, at para. 21; Certified General Accountants Assn. of Canada v. Canadian Public Accountability Board, 2008 1536 (ON SCDC), [2008] O.J. No. 194 (Div. Ct.), at para. 39; Schreiber v. Canada (Attorney General), 52 O.R. (3d) 316 (C.A.), at para. 4, leave to appeal refused at [2002] S.C.C.A. No. 74.

[28] As I advised the parties in the course of the hearing, I am not satisfied that grounds for striking the application have been made out. The application on its face confines the review application to the April 2010 Decision, submitting that the Decision infringes the applicants’ s. 7 Charter rights to life, liberty and security of the person and their equality rights pursuant to s. 15 of the Charter. It seeks declarations under s. 24(1) of the Charter with respect to both, and an order setting aside the Decision. It also submits that the Decision violated the applicants’ rights to procedural fairness in that it was made without notice.

[29] In the alternative, the application seeks an order quashing the Decision on the basis that the Director lacked jurisdiction under the EPA, and in the further alternative, that his failure to require an assessment of cumulative adverse health effects of pollution when making the Decision was unreasonable.

[30] Initially, the applicants also sought an order under section 52 of the Constitution Act, 1982, Sched. B to the Canada Act 1982 (UK), 1982, c.11, declaring that certain sections of the EPA are inoperative “in so far as they allow for the additional discharge of contaminants to air in Chemical Valley absent an assessment and minimization of the cumulative effects of pollution on the Applicants’ health.” The application has now been amended to exclude this claim, apparently in recognition of the fact that such relief is not available on an application for judicial review. As will be discussed further below, the evidentiary record was filed before the amendment to the application was made.

[31] The amended application, without the s. 52 claim, does not necessarily amount to a collateral attack upon earlier approvals or decisions apart from the April 2010 Decision. In oral argument, Mr. Duncan for the applicants conceded that it is not open to them to challenge the regulatory regime on a judicial review application, and that they are only entitled to attack the exercise of the decision making power in April 2010.

[32] The April 2010 Decision permitted a 25% increase in sulphur production by Suncor’s sulphur plant, though within the envelope which had been approved in 2004. It also became clear in argument that there was some confusion in the applicant’s materials concerning the relationship between this increase and the overall production at the oil refinery. The only evidence in the materials filed by the parties on this issue is that the increase in sulphur production had no effect on the overall production levels of the refinery, but only on the cost of production, because with a higher sulphur production, lower quality (cheaper) crude may be used in the process. The application itself does not distinguish clearly between sulphur plant production and overall refinery production. Suncor submitted that all the emissions from its refinery had been approved previously and should not be subject, in effect, to renewed scrutiny. It argues that a cumulative effects assessment, which considers previously existing emissions would necessarily undermine earlier approvals. It cited the references in the application and the evidence to previously approved chemical emissions, such as benzene, as support for its argument that this is really a collateral attack.

[33] This is not, in my view, a basis for striking the application. It remains open to the applicants to challenge the 2010 Decision approving an increase in sulphur production, and to argue that their ss. 7 and 15 Charter rights were violated by the failure to consider the cumulative effects of that increase. It may well be that some of the grounds in the application which related to chemicals not affected by the Decision will not be made out, but that is not a basis for striking the application at this preliminary stage. As will be discussed below, evidence filed that is irrelevant to the proper scope of the application as it relates to the Decision increasing the sulphur production may be struck, either at this stage or by the panel hearing the application on its merits. That does not, however, render the application as a whole a collateral attack or an abuse of process.

[34] Suncor argues, in effect, that any cumulative effects assessment would reopen earlier approvals because it by definition looks at emissions already in the air, which have already been approved. This is a question that should, in my view, be left to the panel hearing the application as it is very closely related to the merits of the application.

[35] The motion to strike the application is dismissed.

II. Motion to strike affidavit evidence

[36] In support of the application, the applicants have filed five volumes of application materials, containing 13 affidavits, including the affidavits of Ada Lockridge, Ronald Plain, Wilson Plain, Dr. Elaine Macdonald, Dr. Michael Gilbertson, William M. Auberle, Dr. Henry S. Cole, Dr. Peter Infante, Dr. Margaret Keith, and Dr. David Carpenter.

[37] Both respondents take issue with much of the evidence filed. To indicate the scale of this motion, one or both respondents take issue with approximately 86 paragraphs of Ms. Lockridge’s 226 paragraph affidavit, some 71 of Ronald Plain’s 162 paragraph affidavit, and some 57 paragraphs of Wilson Plain’s affidavit. The parties very helpfully filed charts with the court providing easier reference to the challenged portions and cross-referencing the grounds upon which they challenge them.

[38] The respondents argue that portions of, or in some cases the entirety of, these affidavits contain evidence that goes beyond the scope of the decision at issue and are therefore irrelevant to these proceedings. They also argue that portions of the affidavits are also inconsistent with the rules of evidence. The Government respondents argue that the offending portions of the evidence filed should be struck.

[39] Suncor submits that the deficiencies with the affidavits are so numerous that rather than excising the problematic portions of the Affidavits, they should be struck out in their entirety.

[40] The respondents submit that much of the evidence filed should be struck for the following reasons:

(a) Irrelevance: The respondents argue that much of the evidence has no bearing upon the facts at issue in the application. More particularly, the applicants have filed irrelevant evidence in support of their application that was not before the Director when making the April 2010 Order, that is beyond the scope of the Director’s decision-making power under the EPA and that impugns contaminants that were not addressed by the April 2010 Order. This irrelevant evidence has no probative value, and is plainly prejudicial.

(b) Hearsay: The respondents submit that much of the evidence contains hearsay statements related to highly contentious matters from unidentified individuals, and double hearsay statements that are inadmissible under any circumstances.

(c) Unqualified opinion evidence: The respondents submit that some of the evidence is opinion evidence from unqualified lay witnesses, which is plainly inadmissible.

(d) Argument and speculation: The respondents also submit that much of the evidence is argumentative and speculative in nature, and therefore, inadmissible.

[41] The applicants make a number of arguments in response. First, they submit that the respondents’ position on relevance is overly narrow in light of the fact that the application is focused on the failure to consider the cumulative impact of the emissions approved in the April 2010 Decision. The existing state of the air quality prior to the 2010 Decision is relevant and necessary to any assessment of the cumulative effect of an additional or proposed emission. Second, they argue that the questions of admissibility are best left to the panel hearing the Application to determine in light of the complete record. Third, they take issue with the substance of the evidentiary arguments raised by the respondents.

[42] Despite their position on this, the applicants have agreed to modify certain portions of the affidavits in response to the objections raised by the respondents.

[43] Given the volume of material in issue, the parties were agreed before me that I would deliver a decision relating to the categories of evidentiary issues, with illustrative examples on the various points.

[44] The first issue to be considered is the extent to which it is appropriate that a motions judge make such determinations.

Sierra Club and case law

[45] The respondents submit that this case falls squarely within the ambit of the decision in Sierra Club v. Ontario, 2011 ONSC 4086, [2011] O.J. No. 3071 (Div. Ct.). In the circumstances of this case, in which the applicants have filed five volumes of material, including 13 affidavits, and in which they seek broad-ranging constitutional relief, the respondents argue it would be just and appropriate for this Court to strike the impugned portions of the record on this preliminary motion. The respondents submit that, pursuant to Sierra Club, a failure to define the appropriate evidentiary case that the respondents must meet, and thus to define the appropriate record, encourages the proliferation of collateral issues, and can result in unnecessarily complicated, expensive and lengthy proceedings. It is preferable for such issues to be decided at a preliminary motion so as to properly define the issues and record prior to the hearing of the application for judicial review.

[46] On the other hand, the applicants argue that all the evidentiary issues raised by the respondent are issues best left to the panel hearing the application. They submit that the Sierra Club decision does not apply to the present case, because that case involved an administrative law challenge where the applicants had sought to file evidence that was not before the decision-maker at first instance. The applicants argue because this Application raises a Charter challenge, the rules of evidence are much different and broader, and thus, Sierra Club is essentially inapplicable.

[47] The respective positions of the parties reflect the two principles which run through the jurisprudence on the subject. On one hand, courts are generally reluctant to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits: see Hanna v. Attorney General for Ontario, 2010 ONSC 4058, [2010] O.J. No. 3081 (Div. Ct.); Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources) (2002), 211 D.L.R. (4th) 741, 2002 41606 (C.A.), at paras. 49 and 53; 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd. (1997), 1997 12196 (ON SC), 37 O.R. (3d) 70 (Gen. Div.); Elementary Teachers’ Federation of Ontario v. Ontario (Minister of Labour), [2008] O.J. No. 662 (Div. Ct.) at paras. 22-23.

[48] On the other hand, this court has recently endorsed the practice of resolving issues about the admissibility of affidavit evidence before a motions judge prior to the hearing before the Divisional Court panel. In Sierra Club, the Court stated, at paras. 7 to 8,

[w]e are of the view that this motion should have been brought prior to the hearing by the panel, in order to clarify the contents of the record prior to factums being filed. Proceeding in such a manner would have enabled the parties to define the issues for the hearing based upon properly admissible evidence. I note that this was the procedure followed in the decision of Hanna v. Ontario (Attorney General), 2010 ONSC 4058 (Div. Ct.). 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.

To fail to define the appropriate record for the Court before the hearing encourages the proliferation of collateral issues, as occurred in this application. Filing material by one party inevitably precipitates a response from the opposite party. The consequence of failing to define the record is a proceeding before this court that becomes unnecessarily complicated, expensive and lengthy. For the parties and for the court, the ground is continually shifting, and the core issues may be eclipsed by the procedural issues.

[49] In Chopik v. Mitsubishi Paper Mills Ltd. (2002), 26 C.P.C. (5th) 104 (ON S.C.), Justice Shaughnessy struck out, on a preliminary motion, a number of paragraphs from two affidavits submitted in support of a motion for certification under the Class Proceedings Act, 1992, S.O. 1992, c. 6, on the basis that responding to the irrelevant evidence would amount to needlessly wasted resources:

Where it is clear in law that evidence is inadmissible, to leave the evidence on the record is embarrassing and prejudicial to the fair hearing of the motion or application. A party should not be put to the needless expenditure of time and resources in responding to evidence which can have no impact on the outcome of the proceeding. [at para. 26.]

[50] These two principles, considered within the context of the present case, are by no means irreconcilable. Defining the record appropriately in advance of the hearing enhances the panel’s ability to determine the merits, and is thus in the interests of justice. As I will discuss below, there is material contained within the affidavit material that is clearly inadmissible and should be struck. On the other hand, this court must take care not to usurp the role of the panel in determining the merits. In case of doubt concerning the admissibility of affidavit material filed, it should not be struck.

[51] I do not agree with the applicants that the fact that there are Charter claims advanced in the present case undermines the position articulated in Sierra Club. The fact that an applicant advances Charter arguments (or natural justice arguments) may well affect the admissibility of particular sorts of evidence, such as, for example, evidence not before the original decision-maker: see Hollinger Farms No. 1 Inc. v. Ontario (Minister of the Environment), [2007] O.J. No. 2405 (Div. Ct.). But this does not undermine the principles articulated above. For example, improper opinion evidence that is clearly inadmissible is not rendered admissible because the underlying application raises Charter issues.

[52] The sheer volume of evidence in an application such as this one increases the importance of having a properly defined record for the reasons set out in Sierra Club, as quoted above. I do not agree with the applicants’ submission that Sierra Club is inapplicable to this matter because there was no hearing held in the present matter. The principle that a record should be appropriately defined before the hearing is particularly important in an era of limited resources within the judicial system as well as the high cost of litigation to the litigants. Having said this, the parallel principle is that evidence should not be struck at this stage unless it is clearly inadmissible. These two principles will guide the following analysis.

[53] Suncor argues that much of the evidence is not admissible on the application for judicial review because it was not before the initial decision maker:

The summary nature of applications for judicial review dictates that, in general, evidence should be limited to the information that was before the original decision-maker or which the decision-maker could have taken into consideration, except where necessary to prove error going to jurisdiction that cannot be proved on the record.

In addition to evidence that was not before the original decision-maker, expert reports and studies that post-date the decision under review are inadmissible. Courts have furthermore emphasized that they are not academies of science which seek to provide a forum to debate environmental science:

It is not the role of the Court in these proceedings to become an academy of science to arbitrate conflicting scientific predictions, or to act as a kind of legislative upper chamber to weigh expressions of public concern and determine which ones should be respected. [citations omitted.]

[54] The difficulty with Suncor’s argument on this point is two-fold. First, the nature of the applicants’ submissions fall within to the exception to the general rule that evidence not before the initial decision maker is not admissible on an application for judicial review. The applicants assert that the Decision breached their ss. 7 & 15 Charter rights. As Dambrot J. recently stated in AlGaithy v. The University of Ottawa, 2011 ONSC 5879, [2011] O.J. No. 4479 (Div. Ct.), at para. 29,

…as with an allegation of a breach of natural justice, affidavit evidence must also be permissible to supplement the record to demonstrate a validly raised allegation of constitutional error (see Rafieyan v. Minister of Citizenship and Immigration, 2007 FC 727, [2007] F.C.J. No. 974 at para. 20). I emphasize that the constitutional issue must be validly raised. The mere labelling an issue as a constitutional one will not of itself open the door to the admission of otherwise inadmissible evidence.

[55] Second, as the applicants point out, they did not have prior notice of the decision and could not have put this issue before the Director.

[56] In my view, the Charter and procedural fairness arguments are at the core of the applicants’ application and are arguments that must be assessed by the panel hearing the application. I would not strike any of the evidence on the sole basis that it was not before the decision maker at this point, because to do so would risk pre-judging the merits of the application.

Relevance

[57] The largest and most wide-ranging challenge to the evidence filed is based on the submission that much of it is irrelevant. The respondents challenge dozens of paragraphs of the Lockridge and Plain affidavits, as well as the entire affidavits filed by Dr. Michael Gilbertson, Dr. Elaine Macdonald and Dr. Margaret Keith on this ground. Many paragraphs are also challenged on other grounds.

[58] With respect to the “hybrid” affidavits of Drs. Gilbertson, Keith and Macdonald, the central objection is that they constitute improper expert opinion and should be struck in all or in part on that basis alone. I will address the hybrid affidavits below in relation to improper expert opinion evidence.

[59] With respect to Ada Lockridge’s affidavit, the Government respondents assert as follows at para. 18 of their factum:

In her affidavit, Ms. Lockridge gives evidence on issues that are irrelevant to this judicial review, including: (a) the feelings of individuals on reserve other than the applicants (paragraphs 25, 71, 177); (b) sources of spills and pollution other than those which are the subject of the impugned decision (which are irrelevant to the determination of this application for the reasons set out below at paras. 45-47 and 53-56) (paragraphs 33, 43, 52, 152, 167, 179, 186); (c) personal health conditions unrelated to the emissions or facility at issue (paragraphs 89, 90, 102, 104-9, 129, 130, 132, 135); (d) personal health conditions and community statistics unrelated to air quality (paragraphs 89, 90, 102, 104-9, 132, 135); (e) the availability of social services on reserve (paragraph 100); (f) the effects of generalized pollution on animals, plants, water, and soil (paragraphs 153, 154, 161, 164, 165, 167-9, 217); and (g) the traditional activities and practices of the community (paragraphs 152, 153, 155, 158, 160, 162, 171-4, 176).[^1]

[60] With respect to Ronald Plain’s affidavit, the Government respondents submit as follows at para. 23 of its factum:

In his affidavit, Mr. Plain gives evidence that is irrelevant to this judicial review, including: (a) the community’s reaction to sirens and other views or feelings of individuals on reserve other than the applicants (paragraphs 20, 79, 92); (b) generalized exposure to pollutants other than those at issue in the impugned decision (which are irrelevant to the determination of this application for the reasons set out below at paras. 45-47 and 53-56) (paragraph 32); (c) personal health conditions unrelated to the emission source at issue (paragraphs 35, 48, 93, 100, 101, 114); (d) personal health conditions and community statistics entirely unrelated to air quality (paragraphs 35, 93, 100, 101); (e) the availability of social services on reserve (paragraph 42); (f) the traditional activities and practices of the community (paragraphs 72, 74-77); (g) the manner in which individuals in the community make plans and lock doors (paragraph 78); (h) the community’s trust in outsiders (paragraph 80); (i) the number or proportion of older people on reserve (paragraph 81); (j) educational experiences of his father (paragraph 86); (k) historical land disputes (paragraphs 87-91); (l) funding sources for environmental workers (paragraphs 98, 99); (m) sources of spills and pollution other than those which emerge from the emission source at issue (paragraphs 102-4, 111); (n) an unrelated road blockade (paragraphs 109, 110); and (o) his opinion as to the government’s methods of regulation (paragraphs 148-50, 152).[^2]

[61] Wilson Plain, who is not a party to the application, also filed an affidavit. The Government respondents submit that paras. 9-17, 20-4, 32, 35-40, 44-6, 48-50, 52, 54, 63-5, 70-4, 76-8, 81, 85, 91, 94, 95, and 99 are irrelevant to the application, stating at para. 28 of their factum that,

[i]n his affidavit, Mr. Plain gives evidence that is irrelevant to this judicial review, including: (a) sources of spills and pollution other than those which emerge from the emission source at issue (paragraphs 32, 52, 81); (b) PCBs, benzene emissions, and other contaminants which are unrelated to the decision at issue on this application (paragraphs 39, 63-5, 73, 74); (c) his personal health conditions, including those unrelated to the emission source at issue (paragraphs 63, 64, 91); and (d) the health conditions or diagnoses of others in the community, including conditions and statistics unrelated to air quality (paragraphs 65, 70-2, 76).[^3]

[62] In addition to the affidavits filed by the applicants and Wilson Plain, the applicants filed a number of affidavits by scientists. As will be discussed below, the respondents challenge some or all of these on a number of grounds in addition to relevance, submitting in particular that they constitute improper expert opinion evidence, at least in part.

[63] The applicants also filed an affidavit from Dr. Elaine Macdonald, a scientist employed by Ecojustice Canada. The Government respondents challenge the relevance of some of her affidavit as follows at para. 34 of their factum:

Dr. Macdonald also gives evidence on issues that are, as discussed below at paras. 45-47 and 53-56, irrelevant to this judicial review, including: (a) emissions of “toxics” (paragraph 33) (b) sex ratio disparities (paragraph 34); (c) emissions of PM2.5, benzene and other volatile organic compounds (VOCs) that are unrelated to the decision being reviewed or the emission source at issue (paragraphs 39, 45, 46, 51); (d) air pollution standards under Regulation 419/05 (paragraphs 51, 58-60); and (e) proposed certificates of approval for facilities other than the one at issue (paragraph 51).[^4]

[64] Dr. Michael Gilbertson, a biologist filed another affidavit. The respondents object to this affidavit on the ground that it contains improper expert opinion, and that, to the extent that it provides evidence within his personal knowledge, such evidence is irrelevant to the issues in this judicial review application. By way of example, the Government respondents submit that his description of his interpretation of the 1996 report on soil and sediment, and the content of that report are irrelevant to the decision at issue in this application, which concerns a 2010 decision in respect of air emissions. Moreover, they argue, there is no allegation of any link between the sulphur dioxide emissions that were the subject of the 2010 Decision and the sex ratio disparities alleged by Dr. Gilbertson at paras. 12, 13, 16, 18 and 19 of his affidavit.[^5]

[65] The application record also contains an affidavit from Dr. Margaret Keith. Again, the respondents submit that her affidavit should be struck in its entirety for reasons similar to those it advances in the case of Dr. Gilbertson. With respect to the relevance issue, the Government respondents submit at para. 41 of their factum that,

[t]o the extent that Dr. Keith provides fact evidence within her personal knowledge, this evidence is not relevant to the decision at issue in this judicial review. Historical emissions of benzene from sources other than the relevant plant (paragraphs 4, 7), and discussions with community members about their health concerns (paragraphs 7-10, 12, 22) are not relevant to the determination of this application. Moreover, there is no allegation of any link between the sulphur dioxide emissions (the subject of the decision being reviewed here) and the sex ratio disparities alleged by Dr. Keith (paragraphs 12, 28-31, 34).

[66] The applicants have also put forward a series of expert reports regarding industrial emissions, their effect on air pollution, and the effects of pollution on human health. These include the reports of William M. Auberle, Dr. Henry S. Cole, Dr. Peter Infante and Dr. David Carpenter. For the purposes of this motion the respondents do not challenge the qualifications of the witnesses that the applicants have put forward as experts. However, they submit that significant portions of all of these experts’ reports should be struck on the basis that they provide evidence that is not relevant to the decisions at issue or the determination of the application for judicial review.

The Respondents’ Submissions on Relevance

[67] The respondents submit that much of the evidence filed is irrelevant to this application as a judicial review of the April 2010 Decision. The overly broad evidence results largely, they submit, from two factors. First, they argue, supported by the uncontested affidavit of Dr. Peter Lynch, Director of Suncor’s Environment, Health and Safety Department, that the application and much of the evidence filed in support confused sulphur production levels with the overall processing capacity of the refinery. He states at para. 16 of his affidavit that,

…there is no change in the volume of the product produced by the Sarnia Refinery (i.e. gasoline, diesel and jet fuels) despite variances in the level of sulphur production from 145 tonnes per day to 180 tonnes per day. The only change is the blend of crude oils processed, which vary only by their sulphur content. For example, if Suncor was granted a notional increase in sulphur processing capacity from 145 tonnes per day to 180 tonnes per day, there would be no corresponding increase in the amount of fuel products created. Rather, the increase in sulphur processing capacity would enable Suncor to utilize more sour crude. Conversely, if the Ministry of the Environment (“MOE”) ordered Suncor to process only 145 tonnes of sulphur per day, there would be no corresponding decrease in the amount of fuel products created. Suncor would instead purchase more expensive, sweeter crude.

[68] Thus, the respondents submit, only evidence relating to the increase in sulphur production, as opposed to overall product production by the plant, is relevant to this application. They concede that the evidence filed contains some evidence indicating that increase in sulphur production authorized by the 2010 Decision could increase emissions of sulphur dioxide and hydrogen sulphide. However, there is no evidence whatsoever to indicate that the increased sulphur emissions would increase other emissions, such as benzene. Moreover, they submit, there is no evidence on the record to suggest that the approved emissions would have synergistic or cumulative effects with other existing emissions. They argue, therefore, that only evidence relating to the effects of sulphur dioxide and hydrogen sulfide could be relevant to any consideration of cumulative effects of this application. Accordingly, for example, Ada Lockridge’s reference to a “loss of boys” i.e., a skewed sex ratio on the reserve suggesting that this is caused by pollution exposure (see para. 109 of her affidavit), is irrelevant to this application in the absence of any casual link between the April 2010 Decision and this pre-existing harm, or indeed, any such harm or risk of harm in evidence.

[69] Second, the respondents submit that because the evidence was filed before the application was amended to delete the s. 52 claim, the evidence includes evidence that is irrelevant to the more narrow judicial review challenge to the 2010 approval itself. They submit, in effect, that the applicants may not indirectly challenge the regulatory framework through the guise of a judicial review application, and that it is therefore appropriate for this court to strike any evidence that is not relevant to the properly scoped issue. They emphasize that the Charter relief sought on a judicial review application must relate to the purported exercise of statutory power and not to the statutory power itself, citing Re Service Employees International Union, Local 204 and Broadway Manor Nursing Home et al., 1984 2112 (ON CA), [1984] O.J. No. 3360 (C.A.), Keewatin v. Ontario (Minister of Natural Resources), 2003 43991 (ON SCDC), [2003] O.J. No. 2937 (S.C.), and Falkiner v. Ontario (Ministry of Community and Social Services), 1996 12495 (ON SCDC), [1996] O.J. No. 3737 (Gen. Div.), in support of this point.

[70] The respondents submit that, in order to establish that their s. 7 or 15 Charter rights have been violated in this case, the applicants must establish a causal connection between the harm or risk of harm asserted and the 2010 Decision. As the evidentiary record indicates that this decision could only have affected sulphur dioxide and hydrogen sulphide, and does not suggest any synergistic effects of these particular emissions on other emissions, evidence about the health effects of benzene or the general state of pollution in the area are entirely irrelevant to this application and should be struck.

[71] The respondents argue, accordingly, that portions of the applicants’ and Wilson Plain’s affidavits that describe existing pollution are irrelevant to this application as they have nothing to do with the 2010 Decision.

[72] At para. 43 of their factum, the Government respondents summarize the basis of their position (which is shared by Suncor) that much of the expert evidence should similarly be struck as irrelevant:

In particular, the applicants’ experts provide extensive evidence regarding the emission of, and the health effects of benzene, 1,3-butadiene, other volatile organic compounds (VOCs) and PM2.5 in the Sarnia region. Dr. Infante’s report, for instance, deals exclusively with the potential link between benzene exposure and disease, without any evidence regarding the nature of exposure in the applicants’ community or providing any link between the decisions at issue and benzene emissions or the effects thereof. None of the applicants’ evidence provides such a link.

The Applicants’ Submissions

[73] The applicants acknowledge that the application as amended is limited to a challenge of the Director’s decision. They argue, however, that the question of relevance turns on the issue of whether he was required to conduct a cumulative effects assessment and if so, of what. These, they submit, are questions that go to the merits, and excluding such evidence (relating, for example, to existing cultural effects of pollution in the area) effectively prejudges the merits and risks creating a record that does not reflect the applicants’ views on the issues.

[74] The applicants also argue that the risk of harm they assert in their ss. 7 and 15 Charter claim is the risk of exacerbating the preexisting harms created by pollution on the area. The state of “Chemical Valley” before 2010, they submit, is relevant to this issue and goes to the argument of fundamental justice because, the applicants argue, it is contrary to the principles of fundamental justice to approve further emissions without a cumulative effects assessment.

[75] In addition, they cite Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429 in support of its argument that this evidence is necessary to have in the record to set the context for their s. 15 argument that the 2010 Decision created a disparate impact upon the applicants.

Analysis of Relevance

[76] There are a number of general points to be made at the outset. First, I am satisfied that there was some confusion on the applicants’ part between the production of sulphur and the overall production by the refinery. The uncontested evidence before the court in the application record is that the 2010 Decision affected the former and not the latter. In addition, the evidence indicates that while this increase might affect production of sulphur dioxide and hydrogen sulphide in some circumstances, there is no evidence that the 2010 Decision would have synergistic effects on any other contaminants such as benzene.

[77] Having said this, however, I am not satisfied that any references to preexisting pollution and its effects on those living in the area should be struck at this stage.

[78] With respect to its s. 7 claim, the applicants must establish that the 2010 Decision has created a risk to their physical or psychological health, or affects their ability to make fundamental life choices. They must also establish that such deprivation took place in a manner that did not conform to the principles of fundamental justice. They assert that the exclusion of the applicants from the decision-making process, the consequent deprivation of a right to be heard, and the failure to consider cumulative effects constituted a violation of the principles of fundamental justice.

[79] With respect to s. 15, the applicants must establish that the Director’s Decision has had a disproportionate impact on the applicants on the basis of an enumerated or analogous ground, and that the disproportionate impact has created a disadvantage by perpetuating historical disadvantage.

[80] For the reasons advanced by the respondents in this motion, it may well be the case that the applicants are unable to establish any causal connection between the 2010 Decision and the harms or risks of harm asserted that will be sufficient to “trigger” ss. 7 and 15 of the Charter. I agree with the respondents that only evidence relating to the 2010 Decision and any synergistic effects of the increase in sulphur production authorized by it are relevant for that purpose, and not any earlier approvals or preexisting contaminants in the absence of evidence of synergistic effects with the increased level of sulphur production.

[81] However, if a panel were to determine that the exercise of statutory power did create a harm or risk of harm that triggered the applicants’ Charter rights, the broader context of the disproportionate impact on the applicants as members of the Aamjiwmaang community would be an issue. A decision to exclude all such evidence would thus risk prejudging the merits of the application relating to the general levels of pollution and its effects on the area, the applicants and their community. I would not, for this reason, strike any of the paragraphs of the applicants’ or Wilson Plain’s affidavits on the basis of relevance. Because these affidavits are filed by the applicants and Wilson Plain who is also a resident of the area and a member of the Aamjiwmaang community, their perceptions of preexisting conditions may be relevant to the impact of the 2010 Decision upon them and, therefore, to the disparate impact argument. In these circumstances, it would be problematic to separate these issues from portions of the affidavits that might be clearly irrelevant.

[82] However, as will be discussed below, some passages of these affidavits must be struck on the basis of improper opinion evidence or unattributed hearsay.

[83] The expert’s reports are reviewed below. With the exception of Dr. Infante’s report, which I would strike in its entirety, portions of all of them are relevant or at least potentially relevant to this judicial review application. All of them contain portions that are not confined to the issues of this application as “scoped”. Having said that, however, I have determined not to strike those portions so that the panel may consider the full reports within the context in which they were actually prepared. The panel may conclude that it is appropriate to strike or disregard various portions of these reports, but in my view, it should be able to consider the context of the reports as originally drafted in making such determinations.

Dr. Auberle’s Report

[84] The respondents object to Dr. Auberle’s report to the extent that it opines on the emissions of benzene and 1,3 butadiene and other pollutants which are not in issue in this application. He does, however, in the course of his brief report, articulate a relevant question, which is, “is the decision to allow Suncor to increase its production of sulphur likely to increase pollutant emissions from the facility?”. He discusses the emissions of sulphur dioxide and hydrogen sulphide in the course of sulphur processing, which is clearly relevant to this application. Paragraphs 2.2 and 2.3 refer to pollutants emitted from the facility “during regular operations” but does not tie them (with the exception of nitrogen oxide and ultra-fine particulate matter) to sulphur production. He also opines that “current regulatory practices do not address such emissions and effects adequately”.

[85] While this report may be overly broad in light of the issues on this application, I would be concerned that striking portions of it could affect the application judge’s ability to properly assess it and determine the appropriate weight to be attributed to the relevant parts of it. The respondents are, of course, entitled to make full argument on these issues to the panel hearing the application, but it would, in my view, be premature to strike it at this point.

Dr. Cole’s Report

[86] Similarly, Dr. Cole’s report clearly appreciates the fact that the impugned decision affected sulphur production. His report is critical of the general regulatory framework, and thus his report is overly broad. One of the questions he addresses is whether “Suncor’s emissions have increased the exposure of Applicants and other people residing in the Aamjiwmaang First Nation area to elevated exposures of pollutants known to cause adverse health effects”. He refers to benzene and other chemicals. It is not clear from his report whether this comment relates to sulphur production or overall refinery production. Striking this statement could distort the evidence, and it should therefore remain at this point. His report also reviews general sources of air pollution in relation to the Aamjiwmaang First Nation community. As discussed above, this could be relevant to disparate impact issues.

[87] It would be premature to strike any part of this report. This is a matter that should be left to the panel to consider in the context of the issues properly before it.

Dr. Infante’s Report

[88] In my view, Dr. Infante’s report is in a different category. It concerns the relationship between leukemia and benzene. This report does not add anything to the other reports and has no link whatsoever to the 2010 Decision. In my view, it is irrelevant to this application and should be struck.

Dr. Carpenter’s Report

[89] This report considers pollution and its effects in the Sarnia/Aamjiwmaang community in comparison to the average Ontario community. It also opines on Ontario standards for various contaminants (including sulphur dioxide) relative to those existing in the United States.

[90] Again, while the scope of the report appears to be broader than that which is relevant to the application, in that it discusses pollutants that do not seem to be affected by the 2010 Decision, significant portions of it relating to general pollution in the area could be relevant to the disparate impact argument and it would thus be premature to strike it at this point. While, in my view, the affiant’s opinions on the adequacy of the regulatory requirements in Canada relative to those existing in the United States are clearly irrelevant to the judicial review of the 2010 Decision, the decision about deleting portions of it should be left to the panel to determine in the context of the issues properly before it.

The reports of Dr. Jackson, Dr. Reimer and Dr. Mitchell

[91] Suncor submits that these reports are irrelevant to the Decision under review and should be struck.

[92] While these reports, which address anthropological, cultural and psychological effects of pollution upon First Nations peoples, do not concern the harm or risk of harm allegedly caused by the Decision under review, they could be relevant to a consideration of the impact of any harm that a court found to have been created by the 2010 Decision. They may be relevant to the s. 15 disparate impact argument. A decision to exclude this evidence at this stage would prejudge the merits of this application and is therefore premature. Accordingly, I would not strike them at this stage.

Improper Opinion Evidence

The Hybrid Affidavits Dr. Macdonald, Dr. Keith and Dr. Gilbertson

[93] The applicants have also filed a number of affidavits from scientists, which are not proffered as expert evidence. These include the affidavits of Dr. Macdonald, Dr. Keith and Dr. Gilbertson. I conclude that these reports should be struck in their entirety. In essence, these affidavits are proffered for the scientific value of the opinions they express. They do not qualify as expert evidence and should therefore not be admitted. In addition, portions of the applicants’ and Wilson Plain’s affidavits constitute improper opinion evidence and should be struck.

[94] Opinion evidence may only be tendered through the evidence of a properly qualified expert. Unqualified expert opinion is impermissible and should be struck: see Bedford v. Canada (Attorney General), 2010 ONSC 4264, [2010] O.J. No. 4057 (S.C.), at para. 101; Southcott Estates Inc. v. Toronto Catholic District School Board, 2009 3567 (ON SC), [2009] O.J. No. 428 (S.C.), at para. 110, varied on other grounds, 2010 ONCA 310; R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, at paras. 17 and 27; Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 4.1.01(1).

[95] The importance of this principle and the role of the court as gatekeepers to exclude such improper evidence was recently underlined in the course of the inquiry by Mr. Justice Goudge concerning the forensic pathology work of Dr. Charles Smith.[^6] At pp. 499-500 of his report, Goudge J.A. noted the importance of trial judges determining the scope of admissible expert evidence, including by defining the precise subject area of expertise for which a witness is qualified to give evidence and ensuring that expert evidence is only admitted within the narrow scope for which the witnesses has been properly qualified:

A final outcome from the admissibility process is a clear definition of the scope of the expertise that a particular witness is qualified to give. As discussed in the earlier part of this chapter, it will be beneficial to define the range of expertise with as much precision as possible so that all the parties and the witness are alerted to areas where the witness has not been qualified to give evidence. . . . As I earlier recommended, the trial judge should take steps at the outset to define clearly the proposed subject area of the witness's expertise…. These steps will help to ensure that the witness's testimony, when given, can be confined to permissible areas and that it meets the requirement of threshold reliability.

[96] In my view, the entire affidavits of both Dr. Michael Gilbertson and Dr. Margaret Keith are effectively expert opinion. They are both scientists, have both done research in fields related to the claims advanced which they discuss and with respect to which they opine in their affidavits. They have not signed an acknowledgement of the expert’s duty form, nor do they claim to be neutral, unbiased or non-partisan in their evidence, as required by the Rules of Civil Procedure and by common law principles governing the role of expert witnesses. They have taken on the role of advocates. As these witnesses are not tendered as qualified experts, their affidavits putting forward opinion evidence are improper and should be struck in their entirety: see Rules of Civil Procedure, R. 53.03(2.1); National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd. (“The Ikarian Reefer”), [1993] 2 Lloyd’s L.R. 68 (Q.B. (Com. Ct.)) at 81; Sagl v. Cosburn, Griffiths & Brandham Insurance Brokers Ltd., 2009 ONCA 388, [2009] O.J. No. 1879, at para. 85; Bedford v. Canada, at paras. 100-3; Gutbir (Litigation guardian of) v. University Health Network, 2010 ONSC 6394, [2010] O.J. No. 4982, at paras. 21-24.

[97] Much of the affidavit of Dr. Elaine Macdonald is also expert opinion. She has not signed an acknowledgement of expert’s duty form and has not claimed to be neutral, unbiased or non-partisan in her evidence. Her evidence shows that she is an advocate for the position of the applicants. As Dr. Macdonald is not qualified to provide expert opinion, the numerous portions of her affidavit where she has provided expert opinion (as set out in Schedule A to the Notice of Motion) are inadmissible and should be struck. While there are portions of her affidavit that do reflect personal experience, these portions do not add to other material already before the Court, particularly in the absence of those portions that effectively constitute improper opinion evidence.

[98] In concluding that the Report of Dr. Macdonald should be struck in its entirety, I also note that she was mistaken as to the effect of the Decision, and appears to have assumed that the increase in sulphur production also affected the overall fuel production at the Suncor refinery. This increases the risk that much of her affidavit is irrelevant to the effects of the 2010 Decision, in any event.

[99] One of the fundamental duties of the expert witness in a civil case is to provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within the witness’ expertise. An expert witness should not assume the role of advocate. Dr. Gilbertson, Dr. Keith, and Dr. Macdonald each provide argumentative and speculative statements in their affidavits that are put forward in support of the applicants’ position. While there are, as indicated above, some portions of these affidavits that do reflect personal experience, these are greatly outweighed by the potentially prejudicial effect that improper opinion evidence may have. This risk is exacerbated when the affiants are scientists as opposed to laypersons such as Ms. Lockridge, Ronald Plain, and Wilson Plain.

[100] Their evidence is inconsistent with the rules for putting expert opinion before the court and should, accordingly, be struck.

The opinion evidence of Ada Lockridge, Ronald Plain and Wilson Plain

[101] The applicants Ada Lockridge and Ronald Plain, as well as Wilson Plain, another fact witness, provide opinion in their affidavits on a wide range of topics which relate in particular to the effects of pollution from the refineries on their community. These witnesses are not qualified to provide expert opinions on these topics. Their opinion evidence is inadmissible and should be struck. While Ada Lockridge, for example, may give evidence as to studies she has participated in and what she has done, she may not give expert evidence as to the results or import of such studies. For example, at para. 79 of her affidavit, she refers to her involvement in some investigation into the sex ratio issue:

In our study, we recognized that further study was necessary to pin-point the cause of the skewed birth ratio and to further study our findings but we pointed out that an issue existed and that maybe pollution could be the cause.

[102] This paragraph constitutes improper expert opinion, as does a considerable part of the Lockridge affidavit relating to empirical work that Ms. Lockridge has been involved with. It goes far beyond a statement that Ms. Lockridge was aware of and concerned about the sex ratio issue and worried about the cause. The applicants have agreed to delete the following passage which was the final sentence of para. 79:

Despite the need for additional study, my own personal view given the comparison between Aamjiwmaang and the control group is that there is only one difference in lifestyle and that is the fact that we live in Chemical Valley and its pollution.

[103] Having said that, the applicants’ evidence relating to the fear or uncertainty as to, for example, cancer rates and statements like “I worry that…”, etc., are potentially relevant to harm or perception of harm and to disparate impact arguments. Similarly, many of the paragraphs the respondents object to as “unqualified opinion” are arguably relevant to psychological impact of the Decision. One such example is found at para. 23 of Ronald Plain’s affidavit:

The effects of long-term cumulative exposure to pollution from all the different exposure to pollution from all the different sources in Sarnia may be killing me slowly like death by a thousand cuts, but I can’t point to anyone single source of pollution or type of pollution that has to stop to protect my health. The fact is that all of the emissions contribute in a cumulative manner to the health risks to which my family, friends, and I are exposed. Adding to the existing pollution burden in our community increases these risks. Not knowing what specifically is being emitted and whether the air pollution poses serious health risks at a given time or location is hugely stressful. Suncor’s increase in production which is at issue is one of many examples.

[104] To the extent that the content in this paragraph is understood to be opinion evidence relevant to establishing the state of pollution in the area, I would agree with the respondents that it is improper. The central point of this paragraph, however, relates to the psychological effects of pollution in general and uncertainty. It is not feasible to segregate out statements that should be excluded from those that are arguably admissible, and so it is appropriate that the paragraph should remain, and the respondents may argue about the issues of admissibility and weight before the panel.

[105] Not all expressions of opinion are inadmissible on the part of lay witnesses: see Graat v. R., 1982 33 (SCC), [1982] 2 S.C.R. 819, 31 C.R. (3D) 289 at p. 305; David M. Paciocco & Lee Stuesser, The Law of Evidence, 5th ed., (Toronto: Irwin Law, 2008).

[106] In considering whether a lay opinion will be admitted, a judge will consider,

…whether the conclusion is one that people with ordinary experience are able to make. Persons of ordinary experience may be able to estimate the speed of a motor vehicle, for example, but not the speed of an airplane. A judge will also consider whether the particular witness has the “experiential capacity” to form the relevant opinion. A young child will not likely have the ordinary experience needed to comment even on the speed of a motor vehicle. [Paciocco & Stuesser, at p. 187.]

[107] In my view, the affiants who reside in the area have the requisite experiential capacity to opine, for example, on matters like the apparent increase in air pollution when the wind is blowing from the refineries, subject, of course, to the rules of relevance. They do not have the requisite capacity to opine, for example, on the effects of particular contaminants on various health or environmental conditions. Such evidence may only be adduced through proper expert evidence.

[108] In sum on this issue, the evidence that is clearly improper opinion evidence should be struck from these affidavits. To the extent that the affidavits refer to fears or uncertainty about effects of pollution that may be relevant as discussed above, the issue should be left to the panel hearing the application. Similarly, not all the opinions expressed by these affiants are inadmissible as some of them are, at least arguably, within their experiential capacity.

Unattributed Hearsay Evidence

[109] In an application, an affidavit may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the deponent’s belief in the information are specified in the affidavit: see Rules of Civil Procedure, R. 4.06(2) & 39.01(5).

[110] However, statements in affidavits for use on an application that touch on a contentious matter and do not state the source of the affiant’s information and belief should be struck. It is essential to the adversarial process that evidence submitted by affiants be under oath or affirmation, and that the affiant is available to be cross-examined in order to test the reliability of the evidence. This rule is well established, and “in the face of an objection being taken the Court may not waive the irregularity”: see Cameron v. Taylor (1992), 1992 7575 (ON SC), 10 O.R. (3d) 277 (Gen. Div.), at para. 24; Metzler Investment GMBH v. Gildan Activewear Inc., [2009] O.J. No. 3394 (S.C.), at paras. 33 and 50; Ontario (Attorney General) v. Paul Magder Furs Ltd., 1989 4253 (ON SC), [1990] O.J. No. 63 (H.C.J.), at para. 21.

[111] The applicants argue that such evidence, however, may still be admissible under the principled exception to the hearsay rule, citing R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 106; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 56-63.

[112] The affidavits of Ada Lockridge, Ronald Plain, and Wilson Plain contain instances where the affiants do not attribute the source of hearsay statements in respect of contentious facts. These paragraphs are set out in Schedule A to the Notice of Motion. This evidence is inadmissible, and should be struck: see Canadian Blood Services v. Freeman, [2004] O.J. No. 4519 (S.C.), at para. 19.

[113] In general, the respondents argue that these paragraphs should be struck on a number of grounds in addition to unattributed hearsay, such as irrelevance. For example, Ms. Lockridge states at para. 179 that,

I remember several evacuations from Aamjiwmaang when I was young due to spills to air. I remember in the early 1970s that there was a massive spill from the Dow chemical plant, but at that time I didn’t know what had been released or from where. […] That specific Dow release killed some of the workers at Suncor and burned a patch through the bush at Aamjiwmaang. People saw a haze and it was coming through their windows. Some people stayed home because they didn’t have a ride or because they refused to leave. When I started doing environmental work people would tell me about incidents over the years and many people spoke about that spill from Dow as something that stuck in their minds.

Paragraph 20 from Ronald Plain’s affidavit states as follows:

The sirens scare my kids; my understanding is that they scare all the kids that go to the daycare because the sirens are right in front of the daycare. There really is no way to react to them because there is no way to know what a siren means.

[114] The respondents object to these passages on the basis that they contain unattributed hearsay relating to matters that are contentious, and that are irrelevant as well.

[115] At para. 38 of his affidavit, Wilson Plain provides the following statement:

To my knowledge, only a handful of people on reserve continue to hunt animals such as deer. These activities are more and more uncommon because of concerns about contamination of animals from industrial pollution. In the past decade, several studies have been conducted of contamination levels on our land and in the reserve. We have actually been warned by our own hunters, like my brother Gerald Plain, as well as researchers following one of these studies, not to eat deer that have spots on their livers, which our own hunters were starting to find.

[116] The respondents submit, and I agree, that these passages contain improper opinion evidence as well as unattributed hearsay, and that they should be struck for this reason.

[117] The combination of the fact that these statements are unattributed hearsay and that they have nothing to do with the April 2010 Decision makes the respondents’ arguments that much stronger. Although I am inclined to generally resolve questions of relevance in these affidavits, as discussed above, in favour of the applicants, the combination of factors satisfy me that the paragraphs set out in Schedule A to the Notice of Motion in relation to unattributed hearsay should be struck.

Speculative evidence

[118] The respondents submit that a number of paragraphs of the affidavits of Ada Lockridge, Ronald Plain, Wilson Plain and Dr. Elaine MacDonald contain speculation that should be struck on the basis that statements that speculate as to the existence of facts that are outside the scope of the deponent’s information or knowledge are impermissible in an affidavit: see Rules of Civil Procedure, R. 4.06(2) & 39.01(5); Desjardins v. Mooney, [2001] O.J. No. 697 (S.C.), at para. 4.

[119] The applicants submit that these statements fall into two categories:

First are statements that are not tendered to prove the truth of what they aver, but rather the fact of the speculation itself. For example, in paragraph 122 of Ada’s Affidavit, she states: I don’t know if there is any correlation between my health problems and the pollution but I often wonder about that. My daughter Felicia and I are currently participating in a study with University of Michigan professor Nils Basu, testing my body for contamination. They took samples of my hair, blood, urine and nails. They also took samples of dust from my house, soil samples outside my house, and my samples of my drinking water, and my pet bird’s feathers. They haven’t given me the results yet and I am scared what they might find.

The second category of statement to which the Respondents object are those that are tendered to prove the truth of the conclusions therein, which the Applicants submit are not speculation but permissible lay witness opinion evidence based on personal observation and experiential capacity. [Applicant’s Factum on the Motion to Strike the Affidavit Evidence, at para. 68-69.]

[120] With respect to the first category, I agree with the applicants that some of the impugned passages, such as the one at para. 122 of Ms. Lockridge’s affidavit, are not proffered for the truth of the contents of the premise but as evidence of uncertainty and fear. Another example is the Ronald Plain’s statement that “my fear became a reality in 2010 when I learned that the Ministry allowed Suncor to increase its production again” (Ronald Plain’s Affidavit, at para. 139). The point of this passage is the fear of increased pollution.

[121] Other passages, however, such as para. 96 of the Lockridge affidavit, do contain inadmissible speculation. Although the applicants have agreed to delete the last sentence of this paragraph, the entire paragraph speculates that certain studies may not have continued as a result of government funding decisions. Speculation as to the health impacts of industry in the area are also inadmissible, except to the extent that the references are made for the purpose of establishing fear or uncertainty that relates to the 2010 Decision (and/or the disparate impact argument).

[122] In my view, however, the respondents’ objections on this category are overly broad. For example, the respondents object to Ms. Lockridge’s statement that some people don’t visit her because of the pollution as inadmissible speculation as to the reason people do not come to visit her. While this is true, it could be understood as simply reflecting her interpretation. In my view, such speculation on the part of a lay witness is likely to be harmless and, properly considered, may be relevant to the arguments related to desperate impact. This is the sort of objection that can be best assessed by the hearing panel, in light of the determinations made on relevance to particular issues at that point.

Argument

[123] It is inappropriate for a witness to provide evidence, whether opinion or otherwise, that constitutes argument in support of that party’s position on the issues that are to be decided by the court: see Coote v. Zellers, [2008] O.J. No. 809 (Div. Ct.), at para. 22; Ontario (Ministry of Natural Resources) v. Ontario Federation of Anglers and Hunters, [2001] O.J. No. 750 (Div. Ct.), at paras. 21, 26. The respondents submit that there are many paragraphs (approximately 80) in the affidavits of the applicants and Wilson Plain that contain argument that should be struck.

[124] The applicants submit that a statement is only improperly argumentative when it contains “a mere statement” of the law, legal opinion, or both. Lay witness opinion evidence based on personal observation is not, in their view, argument. They also submit that some of the impugned paragraphs are intended to support arguments about the psychological state of the applicants, which may be relevant to the issue of disparate impact.

[125] The applicants have, however, agreed to amend many of the paragraphs to which the respondents agree on this ground in their affidavits and that of Wilson Plain. These deletions or alterations are clearly set out in the chart appended to their factum.

[126] Although the respondents have objected to many of the paragraphs they claim contains impermissible argument on other grounds as well, my review of these paragraphs indicates (as does the applicants’ factum) that the amendments they propose have been made largely in response to the impermissible argument submission. I would not strike any additional paragraphs on the sole basis that they constitute impermissible argument. Some of the paragraphs which the respondents identify, however, may constitute improper opinion evidence or impermissible hearsay and should be struck on those grounds, as discussed above.

[127] In coming to this conclusion on this point, I take into consideration the applicants’ submissions that some of these paragraphs may be relevant to the psychological state of the applicants or the impact of existing pollution on their community. One example is para. 13 of Ronald Plain’s affidavit, which states that “I am compelled to deal with this huge threat to the future of the community”. While such a statement is clearly argument (that there is such a threat), it is more of a statement of belief and determination. Such statements are not, in my view, prejudicial to the respondents because a court is unlikely to rely on such a statement in determining issues (other than psychological state and disparate impact, to the extent that it considers them to be relevant). I also take into account the fact that the impugned statements are made in the lay affidavits. There is little or no danger, in my view, that a court will be influenced by such impermissible argument.

[128] In Ontario Federation of Anglers and Hunters, the impugned affidavit argument which the court struck was filed by as expert evidence. In Coote, the affidavit evidence was filed by the self-represented party and accordingly may be understood to have represented a real risk that the line between evidence and legal argument would be confused. This is not the case in the present case. Moreover, many of the impugned paragraphs are also challenged on other grounds such as relevance which may be raised again before the panel.

Conclusion on the Motion to Strike Affidavit Evidence

[129] In the foregoing discussion, I have concluded that some of the evidence tendered is inadmissible and should be struck, although the decisions on admissibility and weight with respect to much of it should be left to the panel for the reasons I have set out.

[130] While I have real doubts as to the admissibility of much of the evidence on many of the grounds raised, especially relevance, striking the affidavits to the extent the respondents request would disrupt the narratives set out in the affidavits, making it harder, not easier, for the panel to understand the evidence. This is particularly true with respect to the affidavits submitted by the applicants themselves, and Wilson Plain as members of the community allegedly affected. In addition, general context and narrative is permissible, and this line is difficult to draw in a preliminary motion.

[131] One must keep the dual principles emerging from Sierra Club and similar cases in mind. On the one hand, it is important to define the scope of the application properly to avoid the proliferation of issues, and to ensure the record filed reflects the issues properly before the court. On the other hand, it is not for a motion judge to usurp the role of the hearing panel in determining the merits of the application. Where there is doubt concerning the admissibility of some or all of a given affidavit, it is best to err on the side of caution and not strike the material from the record.

[132] Moreover, as I have outlined, it will be necessary to make some determinations on the merits in order to finally determine the relevance of much of this evidence. For example, the determination of whether the applicants can establish sufficient risk of harm caused by the 2010 Decision to trigger the Charter violations they allege will, in turn, affect the relevance of significant quantities of the evidence that the applicants argue is relevant to issues of disparate impact.

[133] The applicants ask for leave to amend their affidavits with respect to the portions struck. The applicants rely on Rule 25.11 of the Rules of Civil Procedure:

The court may strike out or expunge all or part of a pleading or other document with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[134] The applicants submit that any delay or prejudice to the respondents will not be significant because they have yet to file their responding material to the application (as opposed to the considerable material they filed on these motions). The respondents strenuously object on the basis that such amendments, at this stage, will only serve to extend and further complicate an already unwieldy (and, they argue, misconceived) proceeding.

[135] I would grant leave to amend only to the extent that the applicants have set out such amendments in the chart attached to their responding factum to the Motion to Strike Affidavit Evidence. Some of these are amendments, and some are deletions. I see no need to grant leave to amend the affidavits beyond this.

[136] Permission to amend, or to file additional material at this stage, beyond those which the applicants had already agreed to, will only serve to protract and complicate an already protracted and complex proceeding.

III. PROTECTIVE COSTS ORDER

[137] The applicants move for a protective costs order insulating them, absent improper conduct during this litigation, from adverse costs if the application for judicial review is ultimately unsuccessful. They submit that the application,

…is a public interest case that raises important questions regarding the application of the Charter, protection of human health from exposure to cumulative emissions of contaminants associated with serious health risks, and the manner in which the Government Respondents approve releases of contaminants to air under the [EPA].

[138] They argue that the nature of this case is one with significant implications for other Ontario communities located in industrial pollution “hot spots”. They also submit that their claims are prima facie meritorious in nature and that these considerations, along with their limited financial means and the disparity in means between them and both respondents, justifies a protective costs order in their favour.

[139] The applicants also submit that the non-financial costs of pursuing this application compound the impacts they have already suffered from living in Chemical Valley, and in particular, maintain that the possibility of an adverse costs award contributes to their already high level of stress and anxiety caused by living in Chemical Valley. The applicants argue that the test for obtaining a costs immunity order should be less stringent than that applicable to an interim or advance costs order as it is less drastic.

[140] The respondents counter that no Ontario court has made a protective costs order, citing Farlow v. Hospital for Sick Children, 2009 63602 (ON S.C.), and they argue that the circumstances in this case do not warrant such an exceptional award. In particular, they submit that this is not a case where, absent such an order, access to justice will be impaired, because Ecojustice is representing the applicants pro bono, and so the application may proceed whether such an order is granted or not.

[141] In addition, they submit that the applicants have not established that the case is one of sufficient prima facie merit to justify the relief sought. They also submit that because the application, properly scoped, concerns only the April 2010 Decision, it is unlikely that the case will have much useful precedential value in other cases. They also point to the fact that this application has been brought in the personal capacities of the applicants and not by the Aamjiwmaang First Nation, and there is no evidence that band members or the Band Council support the application.

[142] The respondents also argue that, unlike the case of British Columbia v. (Minister of Water, Land and Air Protection) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, there are no special circumstances that justify such an exceptional award. They emphasize that a protective costs order as sought would mean that the applicants would have little incentive to ensure that the litigation proceeds in an efficient and just matter. While the order as sought would only apply “absent improper conduct”, it is appropriate for courts to use costs to discourage unnecessary steps or conduct that unnecessarily complicates the litigation even if not rising to the level of being “improper”: Fellowes, McNeil v. Kansa General Insurance Co, [2006] O.J. No. 5130 (S.C.). By way of example, the Government respondents submit that it is not appropriate to insulate the applicants from costs associated with the filing of large amounts of material which, they allege, is irrelevant to the determination of the application.

[143] The Government respondents state that while they are not prepared to undertake not to seek a costs award, they will not seek to collect on any cost award other than an award ordered for improper or clearly unnecessary steps in the proceeding of the sort that would attract a cost award under Rule 57.01(1)(e), (f) and (g).

[144] Suncor submits that it is a private litigant “who has been dragged into this litigation despite its best efforts to comply with the existing law…” and argues that it is unfair that it should effectively be punished with such an order.

The Law

General Principles

[145] In the usual case, costs are awarded to the prevailing party after judgment has been given. It has long been recognized that this general rule reflects a number of policy considerations, which include but are not restricted to the principle of indemnification of a successful party:

The principle of indemnification, while paramount, is not the only consideration when the court is called on to make an order of costs; indeed, the principle has been called "outdated" since other functions may be served by a costs order, for example to encourage settlement, to prevent frivolous or vexations [sic] litigation and to discourage unnecessary steps. [Mark M. Orkin, The Law of Costs, 2nd ed., (Aurora, Ont.: Canada Law Book, 1987) (loose leaf), at p. 2-24.2.]

[146] It is clear that the court has jurisdiction to order costs that do not follow this general rule, and there are many illustrations of cases where such costs awards have been made and upheld, see, e.g., B.(R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 S.C.R. 315. There, the applicants, who were Jehovah’s Witnesses, had unsuccessfully argued that their Charter rights had been violated when a blood transfusion was administered to their baby daughter over their objections. The intervening Attorney-General was ordered to pay the applicants’ costs despite succeeding in the application.

[147] As the Supreme Court of Canada has ruled in cases such as Okanagan and Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38, one of the exceptional orders that may be available which derogate from the general costs rule is an advance or interim costs award. In Little Sisters, Bastarache and LeBel JJ. (at para. 40) noted that creative costs awards, such as adverse costs immunity, may be available in special circumstances.

[148] Although no Ontario court appears to have issued a protective costs order, there is a limited practice in England of doing so. In R. (on the application of Corner House Research) v. Secretary of State for Trade and Industry, [2005] 4 All E.R. 1 (D.A. (Civ. Div.)), the Court of Appeal indicated that such an order could be appropriate in exceptional circumstances where the court is satisfied that:

(a) The issues raised are of general public importance;

(b) The public interest requires that those issues should be resolved;

(c) The applicant has no private interest in the outcome of the case;

(d) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved, it is fair and just to make the order; and

(e) If the order is not made, the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.

[149] In Corner House, the applicant sought judicial review of a decision of the Secretary of State for Trade and Industry amending the procedures of the Export Credits Guarantee Department (“ECGD”) of the Department of Trade and Industry, and the ECGD’s standard forms relating to bribery, corruption and money laundering. The applicant was an educational, research and campaigning organization with a particular interest and involvement in the role of export credit agencies in the prevention of corruption and bribery in international business transactions. The grounds for the claim were, inter alia, that the defendant had failed to consult the claimant or other interested organizations before effecting far-reaching changes to the ECGD’s anti-bribery and anti-corruption procedures, although it had consulted with its corporate customers and their representatives. Corner House claimed that the failure to consult was a serious breach of basic public law standards of fairness and the ECGD’s own published consultation policy.

[150] In Farlow, Herman J., having reviewed Ontario case law on the point, noted that there is no specific provision in Ontario providing for Costs Protection Orders, and continued as follows at para. 89 of her reasons:

However, a review of the more recent cases, in particular, and the references by the Supreme Court and the Ontario Court of Appeal to the availability of a costs immunity award, as well as a consideration of the court’s broad costs discretion, leads me to conclude that the granting of costs immunity, while exceptional, may be considered in an appropriate case.

[151] In considering what an appropriate case might be in Ontario for such an award, Herman J. suggested that the criteria that the Supreme Court of Canada has established for advance or interim costs award may be useful. In Okanagan, the Court set out the following conditions at para. 40:

(a) The party seeking interim costs genuinely cannot afford to pay for the litigation and no other realistic option exists for bringing the issues to trial;

(b) The claim is prima facie meritorious; it would be contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means; and

(c) The issues are of public importance and have not been resolved in previous cases.

[152] These conditions were further refined in Little Sisters, at paras. 39 to 44, as follows:

(a) The injustice that would arise if the application is not granted must relate to both the individual applicant and to the public. This does not mean, however, that every case of interest to the public will satisfy the test.

(b) An advance costs award must be an exceptional measure. The applicant must be able to demonstrate attempts to obtain private funding and, if not impecunious, must commit to making a contribution. The court should also consider different kinds of costs mechanisms.

(c) There would be no injustice if the issue could be settled or the public interest satisfied without an advance costs award.

(d) If an advance costs order is made, the litigant must relinquish some control over how the litigation proceeds.

[153] The criteria in the U.K., as well as Nova Scotia and Newfoundland, where protective costs award are provided for in the rules of court, suggest other factors to be taken into account as well:

(a) Whether the applicant’s financial circumstances are such that the applicant would probably not proceed absent such an order;

(b) The extent to which the public has an interest in the issues being litigated; and

(c) The potential impact of such an award on the other parties. [Farlow, at para. 95-96.]

Analysis

[154] At the outset, I am satisfied that the considerations articulated by the Supreme Court of Canada in Okanagan and Little Sisters, as well as the additional factors set out by Herman J. in Farlow, are useful guidelines to be considered with respect to protective costs orders.

[155] The applicants submitted that the Okanagan and Little Sisters considerations should not be applied to a protective costs order because such an order is less onerous on the party subject to the order. Corner House and Farlow both recognize the similarity in principle between interim costs orders and protective costs orders, although the considerations as set out above are modified to some extent. The overarching point, repeatedly emphasized in all the case law, is the exceptional nature of such orders. While a protective costs order does not require the immediate outlay of cash, it does have the effect of undermining the usual incentive on the party obtaining such an order to consider the prospects of success in making decisions in relation to the litigation. The particular considerations or guidelines, in part, serve to reinforce this point.

[156] In my view, the three considerations articulated in Farlow do incorporate the appropriate guidelines or considerations articulated in Okanagan and Little Sisters. These considerations do not support the costs order sought by the applicant in this case for the following reasons.

[157] First, I am not satisfied on the evidence that the applicants’ financial circumstances are such that they would probably not proceed if the costs order sought is not granted. Ecojustice is representing the applicants pro bono. While there is no doubt that the applicants are of modest means, this is not a case in which the applicants do not have access to justice in the sense that they cannot afford to continue the litigation without the order.

[158] The applicants argue, however, that they are unable to bear the risk of an adverse costs order in the event that they are unsuccessful, and submit further that the anxiety surrounding such a possibility compounds the psychological stress to which they are also subject. They also submit that the respondents are better able to absorb the costs associated with this litigation. From a financial perspective, that is no doubt true as a relative matter.

[159] However, the Government respondents indicate that while they would seek a costs award if successful, they would not “seek to collect on any cost award against the applicants in this application, except an award ordered for improper or clearly unnecessary steps in the proceeding…” (emphasis in original). While I do not doubt that the possibility of an adverse costs order vis-a-vis Suncor is stressful, this is not, in itself, sufficient to satisfy this consideration on these facts. Moreover, the argument that the stress the applicants suffer in this regard compounds the effects of living in Chemical Valley begs the question of whether or why Suncor should bear the costs, when no determination has been made in the merits of the argument whether there is or can be any link between the 2010 Decision involving Suncor’s sulphur plant, and the harm or risk of harm about which the applicants complain.

[160] Second, the court must consider the extent to which the public has an interest in the litigation. This involves a consideration not only of whether there are public interests at stake in a general sense, but whether it is in the public interest that the litigation be pursued: see, for example, Friends of the Greenpeace Alliance v. Ottawa (City), 2011 ONSC 472, 2011 CarswellOnt 315 (Div. Ct.). The question of whether the claim has prima facie merit is related to this, because it cannot be in the public interest to pursue clearly groundless litigation that is doomed to fail. The issues of public interest, public importance, and prima facie merit are thus relevant to the overall question of whether an injustice would result if the case could not be litigated.

[161] There can be no question that this case involves issues of public interest. Having said that, however, the fact that a claim asserts Charter rights or involves matters of some public interest does not necessarily satisfy this criteria: see Farlow. The matter must be of public importance.

[162] The issue in this judicial review application is very narrow. It concerns an administrative decision concerning sulphur production within an envelope of production that had previously been approved following public consultation. The level of sulphur production authorized by the April 2010 Decision had already been approved in 2004 following a process that had involved public consultation (with respect to which the applicants had, though notified, not participated). The consequences of success would be the quashing of the April 2010 Decision and would not affect general emissions from the refinery, and could not generally impose a cumulative effects assessment into the regulatory process, though the applicants and Ecojustice advocate on behalf of such change.

[163] This is very different, for example, from the Corner House decision of the English Court of Appeal. There, the applicants sought judicial review of a decision which had imposed far-reaching changes to the ECGD’s anti-bribery and anti-corruption procedures. The consequences of quashing such a decision as that carry very important public interest effects.

[164] Similarly, in Okanagan, the issue was whether the four respondent Bands had aboriginal title to the land and were entitled to log them, as they had begun to do. The Bands filed a notice of constitutional question challenging ss. 96 and 123 of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159, as conflicting with their constitutionally protected aboriginal rights after the after the Minister of Forests issued stop work orders and commenced proceedings to enforce the orders. The issues, and the direct results of the litigation, were of public interest and of great importance to the applicants. The issue there was a logging regime vis-à-vis the Bands.

[165] I would also note that it is not clear to me that this case is prima facie meritorious in the sense that the Supreme Court of Canada discussed this issue in Little Sisters, although it is not, in my view, a frivolous application. As discussed earlier in these reasons in relation to the applications to strike, the applicants must show a causal connection between the impugned Decision and the harms or risks of harm they allege that they have suffered. Without prejudging the hearing of the application on its merits, it is not immediately clear on a prima facie basis that the relevant evidence before the court on this issue can establish that.

[166] This point illustrates the reason for considering both public importance and merits as part of the considerations for exceptional costs orders such as the one sought here. The order sought here would undermine one of the fundamental policies which underlie the usual costs order, which is to create an incentive for litigants to consider the merit of the cases they bring.

[167] In this case, while the issues are of public interest in broad sense, the narrow nature of the impugned decisions and the limited remedy available in a judicial review application lead to the conclusion that the application does not have sufficient public importance to justify such an exceptional costs order. It cannot be said, in my view, that an injustice would result if this case could not be litigated.

[168] In addition, the fact that the applicants are not bringing this judicial review application in a representative capacity is relevant to the public interest consideration. There is no evidence as to the position of the Band or of the members of the community as a whole with respect to this particular application. While I would not consider this factor, in itself, to be fatal to this motion, it would in general be easier to meet the public interest and public importance components of the test if it were clear that the community which is, according to the application, so profoundly affected, supported it. This is in no way a reflection on the individual applicants, who have clearly worked tirelessly on the broader issues underlying this application with the entire community in mind.

[169] The third consideration mentioned in Farlow particular to protective costs orders is the potential impact on the other parties.

[170] While the Government respondents oppose the order sought, the impact upon it would arguably not be great because it has undertaken not to enforce a costs order, absent unreasonable conduct on the applicants’ part as discussed above.

[171] Suncor, however, is in a different position. It is a private party, as was the hospital respondent in Farlow. Suncor submits that it,

…has been dragged into this litigation despite its best efforts to comply with the existing law, and has been threatened with irreparable harm and the closure of its refinery. Suncor had conducted itself in a reasonable manner throughout. It is unfair that Suncor should be punished with a costs order. [Suncor, Protective Costs Order Factum, at (para. 4(f).]

[172] Suncor argues that the application is based upon extensive irrelevant and inadmissible evidence, and the erroneous assumption that the April 2010 orders permitted Suncor to increase production of fuel products (and related contaminant emissions) from the refinery.

[173] As discussed earlier, I have concerns about the admissibility of a considerable amount of the affidavit evidence filed, but have concluded that much of it should be left for the hearing panel to determine. In the meantime, Suncor (and the Government respondents) have not yet filed their responding material to the application. The issues in this application, and particularly the extent to which they may involve earlier approvals upon which Suncor has relied over the years, are very important to it. While Suncor has not filed evidence relating to its anticipated costs in this application, the indications, based on this application, are that they will be considerable.

[174] The consequences of the order sought would be to force Suncor, a private party, to bear a large part of the costs of this litigation, no matter what the outcome on the merits. This is not justified as a preliminary decision in the present circumstances. There is no allegation whatsoever of wrongdoing on its part, as the applicants themselves note. The applicant’s real concern is with the fact that the regulatory framework does not require the consideration of cumulative effects. As Suncor notes, it has been required to defend this application although the relief is not sought directly from it.

[175] In these circumstances, there are other alternatives to the traditional costs award that could be considered at the end of the litigation. A court might not grant costs to the respondents, even if they are successful. It might grant costs to the respondent only with respect, for example, to costs increased by the filing of material it concluded to be irrelevant or otherwise improper. On the other hand, as B.(R.) demonstrates, it would be open to a court to order either or both respondents to pay the applicants’ costs even if it was not successful. The point, however, is that this determination is most properly made following the resolution of the application so that the court may consider all relevant factors. I note that a number of the cases upon which the applicants rely in support of exceptional costs orders are cases in which such orders have been made at the end of the litigation: see e.g. Incredible Electronics Inc. v. Canada (Attorney General) (2006), 2006 17939 (ON SC), 80 O.R. (3d) 723 (S.C.).

[176] In sum, the fact that the applicants have pro bono representation, the public interest considerations as I have outlined them, as well as the potential effect of this award on Suncor, satisfy me that this is not a case that warrants such an exceptional award. The risk that the applicants will decide not to proceed does not justify undermining the usual costs incentive on litigants to carefully consider the merits of their claims and the particular manners in which they are made. I am unable to conclude that an injustice would result if this case could not be litigated. Moreover, such an award in these circumstances would not justify the impact that it would have on Suncor, irrespective of the ultimate results of the litigation. This is particularly so when the court, following the hearing of the application, will have ample discretion to fashion an award that is fair and appropriate, and which considers at that time, all the policies underlying costs awards.

[177] For these reasons, the application for a protective cost order is dismissed.

IV. conclusion

As set out above, the motion to dismiss the application is dismissed. The application to strike evidence is allowed to the extent set out in these reasons above, and otherwise dismissed without prejudice to the respondent’s right to contest the admissibility before the hearing panel. The motion for a protective costs order is dismissed.

V. costs

If the parties are unable to agree as to the costs at these motions, they may file written submissions with the court within 45 days on a timetable to be agreed upon by themselves, failing which they may seek further direction from the court.

Harvison Young J.

Released:

CITATION: Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316

DIVISIONAL COURT FILE NO.: 528/10

DATE: 20120607

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

ADA LOCKRIDGE and RONALD PLAIN

Applicants

– and –

DIRECTOR, MINISTRY OF THE ENVIRONMENT, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AS REPRESENTED BY THE MINISTER OF THE ENVIRONMENT, THE ATTORNEY GENERAL OF ONTARIO and SUNCOR ENERGY PRODUCTS INC.

Respondents

REASONS FOR DECISION

Harvison Young J.

Released: 20120607

[^1]: Suncor takes issue with generally, though not completely, the same paragraphs. Suncor challenges paras. 25, 33, 43, 52, 71, 89, 90, 100, 102, 104, 105-109, 122, 129, 130, 132, 135, 136, 152, 153-55, 158, 160-62, 164-65, 167-69, 171-74, 176-77, 179, 186 and 217 of Ms. Lockridge’s affidavit.

[^2]: Suncor objects to paras. 20, 32, 35, 42, 48, 72, 74, 75, 76-94, 98-104, 108-111, 114, 127 and 148-52 on the ground of relevance.

[^3]: Suncor objects to paras. 9-17, 20-24, 32, 35-40, 44-46, 48-50, 52, 54, 63-65, 70-74, 76-78, 81, 85, 91, 94, 95 and 99 on the ground of relevance.

[^4]: Suncor takes issue with paras 33-34, 39, 45-46, 51 and 58-60 on the grounds of relevance.

[^5]: Suncor submits that the entirety of the Gilbertson affidavit should be struck on the basis that it constitutes improper opinion evidence, and is in any event, irrelevant to the issues in this judicial review application.

[^6]: Ontario, Inquiry into Pediatric Forensic Pathology in Ontario, Report: Policy and Recommendations, vol. 3 (Toronto: Queen's Printer, 2008) (“The Goudge Report”).