Court File and Parties

2016 ONSC 7658

DIVISIONAL COURT FILE NO.: 367/16

DATE: 2016-12-09

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Saugeen first nation AND chippewas of nawash unceded first nation, Applicants

AND:

MINISTER OF NATURAL RESOURCES AND FORESTY, ATTORNEY GENERAL OF ONTARIO and T&P HAYES INVESTMENTS LTD., Respondents

BEFORE: Geoffrey B. Morawetz RSJ.

COUNSEL: Sarah Valair, for the Minister of Natural Resources and Forestry (Moving Party on the Motion)

Lawrence Hansen, for T&P Hayes Investments Ltd., Respondent

Cathy Guirgvis and Stephanie Kearns, for Saugeen First Nation et al. (Respondents on Motion)

HEARD at Toronto: December 1, 2016

ENDORSEMENT

[1] The Minister of Natural Resources and Forestry (“MNRF”), brings this motion for an order striking out evidence filed by the Applicants on the basis that it is not proper and admissible evidence in an Application for Judicial Review. Specifically, the MNRF seeks an order striking out the affidavit of Todd Fell, sworn September 16, 2016.

[2] In the alternative, the MNRF takes the position that the determination of the issue raised in this motion should be determined by the full panel on the return of the Application.

[3] The Application is in respect of a decision to issue a licence for the construction and operation of a stone quarry within the Applicants’ traditional territory. The Applicants are Saugeen First Nation and Chippewas of Nawash Unceded First Nation, collectively referred to as the Saugeen Ojibway Nation (“SON”). SON asserts that the decision of the MNRF was contrary to law based on two grounds. First, the MNRF failed to meet its constitutional obligations to SON, including the duty to consult and accommodate, or to otherwise ensure those obligations were met prior to making the decision. Second, SON’s rights to procedural fairness were breached in the decision-making process.

[4] SON filed six affidavits as part of its application record. One affidavit is from Todd Fell who is put forth as an expert witness. This evidence was not put before the decision maker at the time the decision at issue was made. The MNRF does not accept Mr. Fell as an expert.

[5] SON takes the position that Mr. Fell’s affidavit is admissible because it is extrinsic evidence that is necessary and relevant to assist the court in making a determination about whether the MNRF met the Crown’s constitutional obligations to SON, including the duty to consult and accommodate.

[6] Counsel to SON submits that to the extent that the MNRF argues that Mr. Fell’s evidence should be excluded because SON had the opportunity to bring this evidence forward prior to this application, this is an issue that goes to the heart of what SON is asking the full panel to decide at the hearing of the Application on February 9 and 10, 2017. In this context, whether or not the process provided a fair and meaningful opportunity for SON to be adequately consulted and accommodated in accordance with constitutional law is a question to be decided by a full panel of this court. Counsel to SON submits that the panel will have the benefit of a full record and submission to make that decision, and as such, this question ought to be left to the panel to decide.

[7] T&P Hayes Investments Ltd. (“T&P”) submitted a completed application for this licence in 2011. SON acknowledges that it knew about the application in 2011. The decision of the MNRF to issue a licence pursuant to the Aggregate Resources Act, RSO 1990, c. A.8 to T&P was made on March 8, 2016.

[8] The hearing date for the Application for Judicial Review has been scheduled for two days on February 9 and 10, 2017.

[9] From the standpoint of the MMRF, the issue on the motion is whether the affidavit of Mr. Fell should be struck out on the basis that the affidavit was not before the decision maker and is therefore not admissible in an Application for Judicial Review, which the MNRF submits is conducted based on the record before the decision maker. The MNRF submits that the narrow exception recognized and the duty to consult cases does not apply.

[10] Furthermore, the MNRF submits that clearly inadmissible evidence should be addressed in a motion prior to the hearing of the application. Concerns about the relevance of some of the Applicants other evidence may be raised at the hearing, if necessary.

[11] In my view, it is appropriate to grant the alternative relief sought by the MNRF, namely, the issue raised in this motion should be determined by the panel hearing the Application on February 9 and 10, 2017.

[12] In arriving at this conclusion, I have taken into account it is of paramount importance that the Application be heard on February 9 and 10, 2017. Although MNRF submits that clearly inadmissible evidence should be addressed in a motion prior to the hearing of the Application, I am concerned that if I determine the motion on the merits, it could jeopardize the scheduled hearing on February 9 and 10, 2017;

[13] In addition, both the MNRF (albeit by way of alternative relief) and SON are content to have the panel determine this issue on February 9 and 10, 2017.

[14] It is time that this Application be determined. T&P submitted a completed application for his licence in 2008. The Application for Judicial Review was issued on July 26, 2016 and perfected on September 26, 2016. The resources of counsel and the court are best directed toward the hearing of the Application on February 9 and 10, 2017.

[15] In the result, an order shall issue, directing that this motion be put before the panel on the hearing of the Application on February 9 and 10, 2017.

[16] Costs of this motion are left to be determined by the panel.

Geoffrey B. Morawetz, RSJ

Date: December 9, 2016