Lachance v. Ontario (Solicitor General) 2023 ONSC 7143
CITATION: Lachance v. Ontario (Solicitor General) 2023 ONSC 7143
DIVISIONAL COURT FILE NO.: 22-2731
DATE: 2023/12/18
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Victor Lachance and Kirk Albert, Applicants/Moving Parties
AND
Solicitor General of Ontario and Attorney General of Ontario, Respondents/Responding Parties
BEFORE: Justice R. Ryan Bell
COUNSEL: Stéphane Emard-Chabot for the Applicants/Moving Parties
Susan Keenan and Shayna Levine-Poch for the Respondents/Responding Parties
HEARD: November 15, 2023
ENDORSEMENT ON MOTION TO PRODUCE ADDITIONAL MATERIALS AS PART OF THE RECORD OF PROCEEDING
Overview
[1] In this application for judicial review, the applicants Victor Lachance and Kirk Albert seek judicial review of the provincial Crown’s decision to build a new correctional facility (the Eastern Ontario Correctional Complex or “EOCC”) on a site in Kemptville. The application is brought on the ground that the Solicitor General’s decision to build the EOCC on agriculturally designated prime farmland constitutes a violation of the Solicitor General’s obligations under ss. 3(5) and 6(2) of the Planning Act.[^1] The application for judicial review, together with the respondents’ motion to dismiss for delay, is scheduled to be heard on February 8, 2024.
[2] The Ministry of the Solicitor General delivered a Record of Proceeding on June 2, 2023.
[3] On this motion, the applicants seek an order compelling the Ministry to add several categories of documents to the Record of Proceeding. The respondents oppose the motion on various grounds. They say a) the applicants’ request is a discovery request which is not available in an application for judicial review, b) the only justiciable issue before the Divisional Court is whether there was a breach of the Planning Act, and c) the Record of Proceeding that has been produced consists of all documents the Ministry considered in addressing the planning treatment of the Kemptville site. The respondents submit that if the applicants’ position is more should have been considered by the Ministry, it was open to the applicants to file “Keeprite” evidence in support of their position.[^2] The applicants have not delivered any such evidence.
[4] For the following reasons, the applicants’ motion is dismissed.
Brief background
[5] The Kemptville site is located next to Highway 416 within the urban boundary of the town of Kemptville. The property formerly housed an agricultural college. Kemptville purchased the majority of the lands on which the agricultural college sat; however, the municipality did not purchase the Kemptville site at issue on this application.
[6] In 2019, the Ministry learned that the Agricultural Research Institute of Ontario, a provincial Crown corporation, was circulating the Kemptville site for sale. At that time, the Ministry planned to build three small correctional facilities in the Eastern Region of Ontario. A previous project to build a large facility in Ottawa had not moved forward. The Kemptville site was identified by Infrastructure Ontario as a potential location for one of the small facilities.
[7] On October 23, 2019, the Ministry submitted an expression of interest to the Agricultural Research Institute. The expression of interest sets out the reasons why the Ministry was considering the Kemptville site. Planning considerations were referenced as a matter to be further investigated, with a future purchase of the site dependent on feasibility investigations by the Ministry’s agent, Infrastructure Ontario.
[8] In June 2020, Cabinet committed funds to the plan to build three small correctional facilities in the area around Ottawa, referred to as the Eastern Region Strategy. The Eastern Region Strategy was announced in a press release on August 27, 2020, which refers to the plan to build one of the three facilities at a “government-owned site in Kemptville.” When the press release was issued, the Ministry had not yet purchased the Kemptville site from the Agricultural Research Institute.
[9] Infrastructure Ontario retained a professional planning firm to conduct a review of the planning treatment of the Kemptville site. The professional planner confirmed that the site is within the urban boundary in both the North Grenville and the upper tier Official Plans and, as such, the restrictions on uses for agricultural land in the Provincial Policy Statement do not apply.
[10] The Ministry purchased the Kemptville site on March 15, 2022.
Applicable Legal Principles
[11] Generally, the evidence on an application for judicial review is restricted to the evidence that was before the original decision-maker. The narrow exceptions – established in Keeprite – are:
(a) materials that ought to have been included in the record of proceedings (that is, they are properly part of the record pursuant to s. 20 of the Statutory Powers Procedure Act;[^3]
(b) evidence that was not before the decision-maker but which,
(i) sets out general background that would assist the court;
(ii) shows procedural defects that are not apparent from the record or the reasons; or
(iii) shows a complete lack of evidence to support a material finding of fact; and
(c) materials that are properly “fresh evidence” on the application.[^4]
[12] Where an applicant alleges that documents ought to have been considered by the decision-maker but are not in the Record of Proceeding, the applicant may deliver affidavit evidence setting out what they say should have been considered in support of an argument that the record supporting the decision was legally deficient: Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), at para. 14.[^5] No such evidence was delivered by the applicants in this case.
[13] Where the matter under review is the exercise of a statutory power of decision as defined in s. 1 of the Judicial Review Procedure Act,[^6] s. 10 of that Act requires the delivery of “the record of the proceedings in which the decision was made” for use on the application. Where the SPPA applies to a statutory power of decision, s. 20 requires the tribunal to compile a record of any proceeding, which shall include “all documentary evidence filed with the tribunal” subject to statutory limitations on the use of such documents.
[14] While neither s. 10 of the JRPA, nor the SPPA is engaged on this application because there is no statutory power of decision at issue, the case law is clear that the respondent is still expected to deliver a record of the material that was considered by the decision-maker with respect to the legal issues raised in the application to provide the court with what is needed to conduct the review:
An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court. This is an aspect of the superior court’s inherent powers of judicial review. A superior court may insist upon the production of an adequate record of the proceedings before the tribunal being reviewed.[^7]
[15] On an application for judicial review, there is no right to insist on general discovery of the respondent: Payne, at paras. 165-166. Nor does judicial review afford a party a right to documentary discovery: CCSAGE, at para. 69.
Application of the legal principles
(i) The justiciable legal issue
[16] There is no real dispute between the parties concerning these legal principles. Where the parties part company is in relation to the justiciable legal issue before the court on the application for judicial review.
[17] The notice of application frames the issue to be determined:
The Minister has designated, for the proposed EOCC, approximately 180 acres of farmland that was part of the former Kemptville Agricultural College (the “selected Kemptville site”). Until March 2022, these lands were owned by the Agricultural Research Institute of Ontario (“AGIO”). The lands are designated locally and provincially as agricultural resources and are classified as having Class 2 soil according to the Canadian Land Inventory as well as under the Ontario Ministry of Agriculture, Food, and Rural Affairs’ farmland classification system.
The application is brought under sections 2 and 6 of the Judicial Review Procedure Act, RSO 1990, c. J.1 on the grounds that the decision to build the EOCC on agriculturally designated prime farmland constitutes a violation of the Minister’s obligations set out in sections 3(5) and 6(2) of the Planning Act, RSO 1990, c. P.13 and are therefore illegal and ultra vires.
[18] The applicants maintain they have a right to a full and accurate record of how the Solicitor General selected the Kemptville site in order to permit the court to undertake meaningful judicial review. They state that the decision being challenged is the selection of the Kemptville site for the construction of the EOCC and, while the Solicitor General enjoys a wide degree of discretion in deciding where to locate a correction facility, this discretion is not unfettered.
[19] With respect, the broad question of how and why the Kemptville site was selected is not the issue on this judicial review, nor could it be. The declaratory relief requested by the applicants confirms that the legal issue before the court on the application is more circumscribed and based on alleged breaches of s. 3(5) and 6(2) of the Planning Act. The applicants seek declarations that the Minister’s decision to build the EOCC on the Kemptville site a) is contrary to the Provincial Policy Statement, 2020 in contravention of the Minister’s obligations under s. 3(5) of the Planning Act, b) does not have regard for local planning policies embodied in the 2010 Municipality of North Grenville Official Plan and other local planning policies, in contravention of the Minister’s obligations under s. 6(2) of the Planning Act, and c) in failing to consult with the local municipality of North Grenville, contravened the Minister’s obligations under s. 6(2) of the Planning Act.[^8] The requested relief in the nature of certiorari and prohibition is predicated on these alleges breaches of the Planning Act, which the applicants say render the Minister’s decision illegal and ultra vires.
[20] On this motion, the applicants speculate that there was an “improper purpose” in the selection of the Kemptville site. They argue that the Record of Proceeding “should show how SolGen came to choose the selected site, whether SolGen put its mind to the statutory requirements that fetter its discretionary powers, and whether the selection process itself complied with the general principles of administrative law by making it clear for the Court what considerations led to the selection of the Kemptville site.”[^9] But the question of how the Minister came to choose the Kemptville site – as opposed to whether the decision to build on the site is in violation of the Planning Act – is a core policy issue that is not justiciable.
[21] Political “core policy decisions” that are based on public policy considerations, such as economic, social, and political factors are generally exempt from judicial consideration provided they are neither irrational nor taken in bad faith: R. v. Imperial Tobacco Canada Ltd., at para. 90;[^10] Trillium Power Wind Corporation v. Ontario (Natural Resources), at para. 48.[^11] A decision made for political purposes, without more, does not constitute bad faith:
Ministerial policy decisions made on the basis of ‘political expediency’ are part and parcel of the policymaking process and, without more, there is nothing unlawful or in the nature of ‘bad faith’... That is what governments do, in pursuit of their political and partisan goals in a democratic society.[^12]
[22] In Cirillo v. Ontario,[^13] the appellant sought to certify a class proceeding claiming redress for the Crown’s failure to hold timely bail hearings for accused persons. The motion judge described the nature and breadth of the negligence claims and concluded the appellant challenged core policy decisions:
For a litigant to seek redress for the government’s resource decisions on a province-wide basis, to bring an action that requires a court to delve into the propriety and efficiency of those decisions, is to go outside the court’s institutional competence...
The sheer magnitude of this class action, its design in alleging liability for policy decisions at a high level, its direct impugning of the Province’s budgetary process, makes it legally untenable. It raises causes of action that do not exist and encounters Crown immunities that apply to these kinds of wide-ranging policy decisions. They are in the nature of “core policy decisions” – i.e. “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith” – and are protected from suit.[^14]
[23] In Tanudjaja v. Canada (Attorney General), the Court of Appeal observed that the question of whether the housing policy is adequate or whether insufficient priority has been given in general to the needs of the homeless is “not a question that can be resolved by application of law, but rather it engages the accountability of the legislatures.” These are issues of “broad economic policy and priorities” that are “unsuited to judicial review.”[^15]
[24] The applicants rely on Canada (Attorney General) v. Slansky[^16] in support of their position that production of the documents is required to ensure that the decision is not shielded from judicial review. In Slansky, the Federal Court of Appeal was addressing the adjudication of a complaint about a judge by the Canadian Judicial Council. Unlike the documents sought by the applicants in this case, the report at issue in Slansky was considered by the Canadian Judicial Council in making its decision; it was not, however, included in the Tribunal Record because of solicitor-client and public interest privilege. The Federal Court of Appeal affirmed the decision not to include the report on the basis of privilege. Slansky is distinguishable on its facts and does not assist the applicants here.
[25] The legal issue set out in the notice of application is the allegation that the Ministry’s decision to build a correctional facility is in contravention of the Minister’s obligations under ss. 3(5) and 6(2) of the Planning Act. With respect, the site selection process belatedly raised by the applicants on this motion engages core policy decisions as to how many correctional institutions to build, how large the institutions should be, and where they should be situated. These are part and parcel of the policymaking process that engage the accountability of the legislature. They are not subject to judicial review.
(ii) The documents sought by the applicants on this motion
[26] The respondents have delivered a two-volume record containing all the material considered by the Ministry in relation to the planning treatment of the Kemptville site. It is against the legal issue as framed in the notice of application that the applicants’ request for additional documents must be considered. No Keeprite evidence has been adduced by the applicants.
[27] As set out in the notice of motion, the applicants seek an order directing the respondents to produce “certain additional materials” as part of the Record of Proceeding. As particularized in their factum, the applicants seek seven categories of documents. As set out in the applicants’ factum, the first category of documents is:
The complete version of the documents partially obtained through requests under the Freedom of Information and Protection of Privacy Act (“FIPPA”):
all content related to the Ottawa Correctional Complex found in the transition documents prepared for Solicitor General Michael Tibollo;
all content related to the Ottawa Correctional Complex found in the transition documents prepared for Solicitor General Sylvia Jones;
the Ottawa Correctional Complex White Paper dated June 2018;
the April 2018 presentation by Infrastructure Ontario to SolGen staff on the new 725-bed Ottawa Correctional Complex project; and
the complete version of the documents partially released as part of the “Gallant FIPPA” request that contain information on the site selection process that led to the decision to select the Kemptville site.
[28] The request for the complete version of documents partially released under FIPPA[^17] constitutes a collateral attack on that process. On their face, none of these documents bears on the legal issue of whether the Minister’s decision to build a correctional facility on the Kemptville site violates the Planning Act. Two of the items in this category are transition binders that refer to the separate Ottawa Correctional Complex project, a separate plan under a previous government, to build a correctional facility in Ottawa. The White Paper and the April 2018 presentation also relate to the Ottawa Correctional Complex project.
[29] The second category of documents consists of:
Documents known to exist but that have not been included in the Record of Proceedings:
the 2015 Fotenn report on the Kemptville campus;
the “100+” emails identified in the context of the Gallant FIPPA request by the Ministry of the Solicitor General with respect to the site selection process but that were later denied;
the March 2018 document entitled Thunder Bay and Ottawa Correctional Complexes – Project Methodology; and
June 2020 Treasury Board approval documents for the Eastern Region Strategy and the EOCC.
[30] These documents, too, focus on the site selection process. These documents address former plans to build the Ottawa Correctional Complex, and engage core policy decisions. The June 2020 Treasury Board approval documents for the Eastern Region Strategy and the EOCC are subject to Cabinet confidence. These documents were not considered by the Ministry in addressing the planning treatment for the Kemptville site.
[31] The third category of documents sought by the applicants consists of:
Documents relating to the development and adoption of the Ottawa Correctional Complex, including the Functional Planning and Facility Planning Study produced by Park Architects Limited for the correctional facility in Ottawa, along with briefing notes, business case, policy documents, Solicitor General approval documents, Treasury Board approval documents, and the transition documents for the incoming Minister of Community Safety and Correctional Services Marie-France Lalonde relating to the OCDC and the Ottawa Correctional Complex infrastructure
[32] These documents are, on their face, a request for impermissible discovery – “business case, policy documents” – in relation to the former, different plan to build a correctional facility in Ottawa.
[33] The fourth category of documents sought by the applicants consists of:
Documents relating to the development and adoption of the Eastern Region Strategy, including briefing notes, business case, policy documents, Solicitor General approval documents, Treasury Board approval documents, and the “multi-year planning process to evaluate regional bed capacity” referred to in Solicitor General Jones’ transition materials.
[34] The development and adoption of the Eastern Region Strategy are core policy issues, not subject to judicial review on this application.
[35] The fifth category of documents sought by the applicants consists of:
All site selection documents and land-use planning documents considered by the Solicitor General prior to August 2020 as part of the selection of the Kemptville site, including documents related to any changes in site selection criteria such as the expansion of the 40 km search radius and the addition of the Highway 416 corridor as a search parameter.
[36] The land-use planning documents referred to in this category of documents are already included in the Record of Proceeding. The balance of the documents sought are site selection documents, which is not the legal issue in this application.
[37] The sixth and seventh categories of documents sought by the applicants are:
Communications between MPP and then-Minister of Housing and Municipal Affairs, Steve Clark, or his office, Solicitor General Sylvia Jones, her office or ministry staff, and Infrastructure Ontario relating to the selection of the Kemptville site; and
Communications between the Solicitor General, her office or ministry staff, and the Mayor or Municipality of North Grenville with respect to the selection of the Kemptville site in 2019 or 2020.
[38] These documents all relate to the selection of the Kemptville site. They are not documents considered by the Ministry in relation to the planning treatment of the Kemptville site.
[39] In summary, the applicants have no right to documentary discovery. The records they request were not considered by the Ministry in relation to the planning treatment of the Kemptville site and they will not assist the court in deciding the legal issue on the application for judicial review.
Conclusion
[40] Accordingly, the motion is dismissed. The respondents are seeking their costs of the motion. In the event the parties are unable to agree on costs, they may make written submissions limited to a maximum of three pages, excluding relevant attachments. The respondents shall deliver their costs submissions by January 8, 2024. The applicants shall deliver their costs submissions by January 29, 2023. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Justice R. Ryan Bell
Date: December 18, 2023
CITATION: Lachance v. Ontario (Solicitor General) 2023 ONSC 7143
DIVISIONAL COURT FILE NO.: 22-2731
DATE: 2023/12/18
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Victor Lachance and Kirk Albert
Applicants/Moving Parties
AND
Solicitor General of Ontario and Attorney General of Ontario
Respondents/Responding Parties
BEFORE: Justice R. Ryan Bell
COUNSEL: Stéphane Emard-Chabot for the Applicants/Moving Parties
Susan Keenan and Shayna Levine-Poch for the Respondents/Responding Parties
HEARD: November 15, 2023
ENDORSEMENT ON MOTION TO PRODUCE ADDITIONAL MATERIALS AS PART OF THE RECORD OF PROCEEDING
RYAN BELL J.
Released: December 18, 2023
[^1]: R.S.O. 1990, c. P.13. [^2]: Keeprite Workers’ Independent Union et. and Keeprite Products Ltd., 1980 1877 (ON CA). [^3]: R.S.O. 1990, c. S.22 (“SPPA”). [^4]: 30 Bay ORC Holdings Inc. et al v. City of Toronto, 2021 ONSC 251 (Div. Ct.), at para. 114; Laforme v. The Corporation of the Town of Bruce Peninsula, 2021 ONSC 5287 (Div. Ct.), at para. 21. [^5]: 2011 ONSC 4086 (Div. Ct.). [^6]: R.S.O. 1990, c. J.1 (“JRPA”). [^7]: Payne v. Ontario Human Rights Commission, 2000 5731 (ON CA), at para. 161, cited in Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, at para. 44. See also CCSAGE Naturally Green v. Director, sec. 47.5 EPA, 2018 ONSC 237 (Div. Ct.), at para. 68. [^8]: Notice of Application, para. 5. [^9]: Factum of the Applicants, para. 60. [^10]: 2011 SCC 42. [^11]: 2013 ONCA 683. [^12]: Trillium Power, at para. 54. [^13]: 2021 ONCA 353. [^14]: Cirillo, at para. 41, citing Cirillo v. Ontario, 2019 ONSC 3066. [^15]: 2014 ONCA 852, at para. 33. [^16]: 2013 FCA 199. [^17]: R.S.O. 1990, c. F.31.