CITATION: Rockcliffe Park Residents Association v. City of Ottawa, 2024 ONSC 2690

COURT FILE NO.: DC-23-2812

DATE: 2024/05/13

DIVISIONAL COURT - ONTARIO

RE: Rockcliffe Park Residents Association, Applicant

AND:

The City of Ottawa, Respondent

BEFORE: Justice K.A. Jensen

COUNSEL: Katie Black and Desneiges Mitchell Counsel, for the Applicant

Timothy Marc and Kellan Mouton Counsel, for the Respondent

HEARD: March 26, April 3, 2024

ENDORSEMENT

Introduction

[1] This is a decision on a motion by the City of Ottawa (the City) to strike four affidavits filed by the Applicant, the Rockcliffe Park Residents’ Association (the Applicant or the RPRA), in support of their application for judicial review. In addition, the City seeks to quash two notices of examination of two City employees.

[2] The application for judicial review (the Application) arises out of the issuance of a heritage permit under section 42 of the Ontario Heritage Act[^1] (OHA) to construct a new building at the address municipally known as 480 Cloverdale Road in Rockcliffe Park, subject to the conditions set out in the permit.

[3] The village of Rockcliffe Park has been declared a Heritage Conservation District (the Rockcliffe Park Heritage Conservation District or RPHCD), pursuant to s. 41 of the OHA. Section 42(1) of the OHA requires property owners to obtain a permit (heritage permit) from the municipality prior to erecting any building or structure in a designated heritage conservation district.

[4] When an application for a heritage permit for construction in the village of Rockcliffe Park is submitted to the City, a City Planner reviews the application, consults with the RPRA, and prepares a report with a recommendation to the Built Heritage Committee (BHC) on whether to approve the application. The BHC studies the application and report, hears submissions by the RPRA and then submits its recommendation to City Council. City Council then reviews the record and makes a decision on the application.

[5] In the present case, there were several applications for a heritage permit submitted by the Intervenor, Jianbin Wang (the Intervenor). The first application was considered by the BHC in November 2021 and was deferred by the BHC. The Intervenor then submitted a revised application in February 2022, which was rejected by both the BHC and City Council.

[6] The Intervenor submitted a second application in the Spring of 2023, which was approved by both the BHC and City Council. The Applicant filed the Application to review the decision(s) on August 11, 2023.

[7] The Applicant has served four affidavits in support of its Application and has served the City with notices of examination for two City Planners, Luis Juarez and Adrian van Wyk. On March 15, 2024, the City served and filed its motion to quash the notices of examination and to strike the affidavits in support of the Application.

[8] The Intervenor supported the City’s position on the motion and adopted the City’s submissions.

[9] For the reasons set out below, I have concluded that some of the evidence tendered in three of the Applicant’s affidavits is inadmissible and should be struck. The decisions on the admissibility and weight with respect to the rest of the affidavit evidence should be left to the panel hearing the Application. Therefore, the motion to strike evidence in some of the Applicant’s affidavits is allowed to the extent set out in these reasons, and otherwise dismissed without prejudice to the City’s right to contest the admissibility before the hearing panel.

[10] Similarly, the motion to quash the notices of examination is allowed in part. The notice of examination for Adrian van Wyk is quashed. The notice of examination for Luis Juarez is not quashed. However, the scope of the examination of Mr. Juarez is narrowed. It will be for the panel to determine the admissibility of the evidence obtained on the examination of Mr. Juarez.

The Application for Judicial Review

[11] In their Application the RPRA challenges what they describe as three decisions leading to the issuance of the heritage permit to the Intervenor. The first alleged “decision” is that of the City of Ottawa’s Planning, Real Estate and Economic Development Department recommending that the Building Heritage Committee (BHC): (i) recommend that City Council approve the application to construct a new building at 480 Cloverdale Rd.; and (ii) recommend that City Council approve the issuance of the heritage permit.

[12] The second “decision” is that of the BHC dated July 11, 2023, to approve and then recommend, inter alia, that: (i) City Council approve the application to construct a new building at 480 Cloverdale Rd.; and (ii) City Council approve the issuance of the heritage permit ("BHC Decision”).

[13] The third “decision” that is challenged in the Application is the decision of City Council, dated July 12, 2023, to, inter alia, approve the application to construct a new building at 480 Cloverdale Rd., and approve the issuance of the heritage permit ("the City Decision").

[14] The City of Ottawa states that there is only one decision that may be challenged and that is the decision of City Council, on July 12, 2023, approving the application to construct a new building at 480 Cloverdale Rd.

[15] In these reasons, I refer to “the decision(s)” because it is for the panel hearing the Application to determine whether there is one or more decisions under review in the Application. That issue was not argued before me and therefore, I have not made a ruling on it.

The Grounds of the Application for Judicial Review

[16] In the Application, the RPRA alleges that in approving the issuance of the heritage permit, the City and its officials acted outside their statutory grant of authority by ignoring or failing to apply section 7.4.2.3 of the Rockcliffe Park Heritage Conservation Plan ("RPHC Plan" or the Plan) and By-Law No. 2008- 250, which require, inter alia, that the mass and height of new buildings in Rockcliffe Park be consistent with surrounding buildings.

[17] The RPRA alleges that in approving the proposed structure at 480 Cloverdale, which is not consistent with the adjacent homes in the area, the decision-makers ignored the conditions precedent to the granting of the permit, which rendered the Decision(s) ultra vires.

[18] The RPRA further alleges that the Decision(s) are/were arbitrary, unjustifiable and made absent any evidence of consistency in height and mass with the house adjacent to it.

[19] The RPRA also alleges that the heritage permit was granted on the basis of irrelevant considerations flowing from a settlement between the City and the Intervenor before the Ontario Land Tribunal (OLT).

[20] In addition, the Applicant alleges that the Decisions are inconsistent with the City's established internal authority including the City's two prior decisions on applications (the first application and the revised application) for the same property and the Annotated Rockcliffe Park Heritage Conservation Plan.

[21] Finally, the Applicant submits that its rights to procedural fairness were violated when the City failed to: (1) include certain submissions by the RPRA's representatives to the BHC and City Council; and (2) disclose the dimensional information of the impugned design, given that the Owner's documents/drawings were not legible in the publicly available documents.

Procedural Background

[22] On September 16, 2023, the City filed the Record of Proceedings with the Divisional Court. The City subsequently produced two volumes of supplemental records on September 22, 2023 and January 19, 2024. These volumes included records inadvertently omitted from the first production of the Record of Proceedings.

[23] On December 18, 2023, the Applicant served the City with the affidavits of Darcy Charlton, Kim Ratushny, and Michele Hayman in support of the Application. Darcy Charlton is the architect who, at the request of the RPRA, conducted an analysis of the volumetric mass of the proposed structure to be built at 480 Cloverdale and the mass of the adjacent property. Ms. Ratushny is the owner of the property adjacent to 480 Cloverdale. Ms. Hayman is the President of the RPRA.

[24] On February 13, 2024, the Applicant served the City with notices of examination for Luis Juarez and Adrian van Wyk for the purposes of cross-examination on all issues relevant to the subject Application. Luis Juarez and Adrian van Wyk are City Planners. Mr. van Wyk prepared the reports that went to the BHC recommending that the Intervenor’s first application and revised application for a heritage permit be rejected. Mr. Juarez is the City Planner who prepared the report that went to the BHC recommending the approval of the Intervenor’s second application for a heritage permit.

[25] On or about March 22, 2024, the Applicant served a supplementary affidavit from Michele Hayman in support of their response to the Motion to Strike and in support of the Application for Judicial Review.

The Motion

[26] The City seeks to strike all four affidavits on the basis that they do not qualify as exceptions to the general rule that evidence on an application for judicial review is limited to the evidence that was before the decision-maker. The City argues that the only decision-maker in this case is the Ottawa City Council. The City seeks to quash the notices of examination of Luis Juarez and Adrian van Wyk on the basis that their evidence is not essential and necessary to the resolution of the Application and that by seeking to examine these two individuals, the Applicant is seeking to conduct a fishing expedition.

[27] The Applicant responds that the evidence in the affidavits and from the City Planners is necessary to demonstrate that: (1) there was a complete absence of evidence to support the decision; (2) the decision-makers failed to follow binding internal policy, their own decisions on the same matter and external requirements; and (3) the decision-makers breached the Applicant’s procedural fairness rights. As such, the evidence is necessary and admissible, according to the Applicant.

The Issues

[28] The issues in the present motion are as follows:

(i) Should the motion to quash the four affidavits be decided on a preliminary basis or should it be left to the Panel hearing the Application for Judicial Review to determine?

(ii) If the motion to quash the affidavits should be decided now, should all or parts of the four affidavits be quashed?

(iii) Should the Notices of Examination be struck?

(iv) If the Notices of Examination should not be struck, should the scope of the examinations be restricted?

(v) Should the subpoena duces tecum be struck or narrowed in scope?

Issue One: The Timing of the Motion to Quash the Affidavits

[29] In the Applicant’s view, the case law clearly establishes that a motion to quash affidavit evidence should not be determined on a preliminary basis, but rather should be heard and decided by the panel hearing the application for judicial review.

[30] I disagree that the case law clearly establishes a rule about the timing of pre-emptive motions to quash affidavit evidence. In Lockridge v. Director, Ministry of the Environment, Justice Harvison Young noted that there are two principles that run through the jurisprudence on the appropriate timing of motions to quash evidence in the context of applications for judicial review.[^2] On the one hand, the courts have generally been reluctant to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits.[^3] On the other hand, there are decisions such as Sierra Club v. Ontario, in which this Court stated that issues about admissibility of affidavit evidence should be determined by a motions judge prior to a hearing before the Divisional Court panel so that the hearing on the merits of the application may proceed expeditiously and efficiently.[^4]

[31] In Lockridge, Justice Harvison Young (as she then was) decided to follow the hybrid approach to a motion to quash, which was developed in Gutierrez v. The Watchtower Bible and Track Society of Canada et al.[^5] and applied in Holder et al. v. Wray et al.[^6]. Justice Harvison Young stated that the hybrid approach is justified because “[d]efining 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”.[^7] According to this approach, where there is material in the affidavits that is clearly inadmissible, it should be struck. However, the court must be careful not to usurp the role of the panel in determining the merits of the application. In Justice Harvison Young’s view, when there is doubt concerning the admissibility of affidavit material, it should not be struck.

[32] Using the hybrid approach to the motion to quash affidavit evidence, Justice Harvison Young struck affidavit evidence that was wholly irrelevant to the issues raised in the application, improper opinion evidence, unattributed hearsay evidence, speculative evidence and argument. Of note, Justice Harvison Young did not strike any evidence on the basis of irrelevance except for one affidavit where it was clear that the evidence did not relate to an issue raised in the application. In the result, Justice Harvison Young struck some of the evidence but dismissed the motion with respect to many other requests to strike, without prejudice to the respondents’ right to argue the admissibility issues before the panel hearing the application on the merits.

[33] I adopt the approach of Harvison Young J. in Lockridge. In my view, it strikes the appropriate balance between fairness and efficiency. It is also consonant with the view that defining the evidentiary record prior to a hearing may have a heightened importance in applications for judicial review and in class action proceedings.[^8]

Issue Two: Should All or Parts of the Affidavits in Support of the Application be Quashed?

[34] The general rule is that, on an application for judicial review, affidavits containing material that was not before the decision-maker at first instance will not be allowed.[^9] The record that goes before the reviewing court should essentially be the material that was before the decision-maker at the time the decision was being made.

[35] In Lachance v. Ontario (Solicitor General)[^10], Madam Justice Ryan Bell summarized the narrow circumstances in which additional evidence will be permitted on an application for judicial review beyond the official record as follows:

(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);

(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. (citations omitted)[^11]

[36] An applicant may deliver affidavit evidence of documents that they say ought to have been considered by the decision-maker but are not in the Record of Proceeding in support of an argument that the record supporting the decision was legally deficient.[^12]

[37] In the present case, the Applicant argues that the four affidavits provided by Ms. Ratushny, Ms. Hayman and Mr. Charlton fit within the exceptions outlined above and are therefore admissible in their entirety. In addition, the Applicant argues that the Supreme Court of Canada’s decision in Vavilov[^13] has expanded the scope for the admissibility of evidence on an application for judicial review.

[38] I am of the view that it is not appropriate for me at this stage in the process to rule on the latter point raised by the Applicants with respect to the increased scope of the Application Record following Vavilov. Rather, in employing the hybrid approach, I am limited to examining the affidavits to determine if all or parts of them are clearly or obviously inadmissible based on the rules of evidence and the general principles regarding the admissibility of evidence on applications for judicial review.[^14] Where it was unclear to me whether the evidence falls within one of the exceptions or may meet an expanded definition of admissibility, I have erred on the side of caution and left that for the determination of the Panel. What follows are my reasons for striking or not striking parts of the affidavit evidence proffered by the Applicant.

The Affidavit of Darcy Charlton

[39] The Applicants argue that while the Record of Proceeding does include the expert evidence of Darcy Charlton, which they say was submitted to the BHC and City Council by the RPRA for consideration in reaching its decision, the evidence on the Record does not contain Mr. Charlton’s expert qualifications. The Applicant states that for Mr. Charlton’s reports to be admissible before the Divisional Court it must meet the requirements of subrules 39.01(7) and 53.03(2.1) of the Rules of Civil Procedure. Therefore, in his affidavit, Darcy Charlton has attached his C.V. along with the original expert reports submitted to the City as exhibits to his Affidavit.

[40] The City of Ottawa seeks to strike Darcy Charlton's affidavit arguing that it does not address the heritage application that is the subject of the application of judicial review, but rather a prior application. Therefore, Mr. Charlton’s affidavit is not relevant and should not be admitted.

[41] Mr. Charlton’s affidavit, sworn December 11, 2023, is short. In eight paragraphs, Mr. Charlton explains that he was retained by Ms. Ratushny to conduct a volumetric evaluation of the existing residential dwelling located at 484 Cloverdale Road, Ottawa, Ontario, and a volumetric evaluation of the proposed new construction at 480 Cloverdale Road, Ottawa, Ontario. He attaches the original reports and his C.V.

[42] I make no comment on whether Mr. Charlton’s evidence would be admissible as expert evidence on the merits of the present Application. However, given that the City did not file an Affidavit in support of the Record of Proceedings, it is not clear whether Mr. Charlton’s evidence, including his C.V., were before the decision-makers in July 2023. It seems that there are documents in the Record of Proceedings that may not in fact have been before the decision-makers in 2023. Mr. Charlton’s volumetric analyses and qualifications, which were provided in the context of the previous applications for a heritage building permit, are not irrelevant to the issues raised in the Application as to whether the decision(s) was/were unreasonable, arbitrary and/or based on irrelevant considerations. Therefore, I find that Mr. Charlton’s Affidavit should not be struck at this stage in the proceedings.

Background Information and Relevance

[43] An affidavit in support of an application for judicial review that provides general background information may be permitted but the affidavit is not to be in the nature of spin or advocacy.[^15]

[44] The Applicant argues that most of the evidence provided in the affidavits of Kim Ratushny and Michele Hayman constitutes background information that the Divisional Court panel will need to understand: (1) how decisions are made with respect to Heritage Building Permits; (2) the factors, legislation, policies and plans that are taken into account in making the decision whether to grant a permit; and, (3) the previous decisions rendered by the decision-makers in the present case that are inconsistent with the decision under review.

[45] The City argues that the only decision that is under review in the present case is City Council’s decision of July 12, 2023 granting the application. The previous decisions are irrelevant to the present application since they are not the subject of review. Therefore, the City argues, all references to those decisions should be struck from the affidavits.

[46] I am cognizant that the nature of the decision in the present case may not warrant the extensive Record proposed by the Applicant. As the Ontario Court of Appeal stated in Endicott v. Ontario (Independent Police Review Office), where the complexity of the matter, the rights affected and the deliberative process of the statutory decision-making power are at the lower end of the spectrum, the record may be more narrowly circumscribed.[^16] However, after a careful review of the affidavits, I find that the evidence in them is not clearly irrelevant to the issues raised in the Application. Therefore, at this stage in the proceedings I do not find it appropriate to strike any of the material in the three affidavits of Ms. Ratushny and Ms. Hayman on the basis of relevance.

Absence of Evidence

[47] One of the exceptions to the rule against supplementing the record on judicial review with additional is evidence is where it is necessary to show that the decision-maker made a decision in the absence of evidence.

[48] In the Application, the Applicants allege that the decision(s) under review was/were made in the absence of any evidence that the building met the mandatory requirements in section 7.4.2.3 of the RPHCD Plan. According to the Applicant, the RPHCD Plan was endorsed by the City in accordance with the Ontario Heritage Act and adopted into law by the City as part of a by-law in 2016. It sets out certain legal pre-conditions for the issuance of heritage permits, including section 7.4.2.3, which states:

Construction of new buildings will only be permitted when the new building does not distract from the historic landscape characteristics of the associated streetscape, the height and mass of the new building are consistent with the Grade I building in the associated streetscape, and the siting and materials of the new building are compatible with the Grade I buildings in the associated streetscape [ ... ]

[49] The City argues that the Record discloses evidence on the issues of the consistency and compatibility of the mass and height of the new building with the Grade I building in the associated streetscape. That evidence includes a chart (the HCD Evaluation Chart) that was before the BHC and City Council, which provides information about the consistency of the mass and height of the proposed new building with the adjacent property, as well as RPRA’s written submissions, which dealt with their concerns about mass and height consistency. Therefore, the City maintains that the Applicant’s argument that there is an absence of evidence on this issue is false. As such, the Applicant should not be entitled to lead any evidence in support of the allegation that the Decision was rendered in absence of evidence on this point.

[50] The City relies on the decision of Justice Corbett in Lovell v. Ontario (Minister of Natural Resources and Forestry).[^17] In that case, the respondent moved, in advance of the hearing on the merits, to strike evidence filed by the applicants on their application for judicial review. The evidence the respondents sought to lead in that case was fresh evidence that they would have led had the decision-maker permitted them to do so. Justice Corbett held that this was not a case where the procedural fairness issue could not be fully appreciated without seeing the evidence the applicants would have adduced if they had been given the chance.

[51] The present situation is different from the motion before Justice Corbett in Lovell. The Applicant is not seeking to adduce fresh evidence. They are seeking to adduce evidence which they say existed at the time the decisions were made, and which should have been provided to the decision-makers and was not. In addition, they allege that there is evidence that was before the decision-makers but is not in the Record of Proceedings that the City was required to produce. The Applicants state that it is necessary for the panel to see that evidence to understand that the decision-makers had no evidentiary basis upon which to find, as they did, that the requirements of s. 7.4.2.3 of the RPHCD Plan were met.

[52] While the Applicant’s arguments with respect to the absence of evidence on the issue of the mass and height consistency of the proposed structure were not extremely strong, the evidence that the Applicant seeks to adduce is not obviously irrelevant to the issues raised in the Application. Therefore, I find that at this stage of the process, given that I have not heard the Applicant’s arguments on the merits of the Application, I must defer the decision regarding the admissibility of evidence on this issue to the panel hearing the Application.

Improper Opinion and Argument

[53] The City also argues that those parts of the affidavits of Ms. Ratushny and Ms. Hayman that are said to be background information are in fact argument and advocacy. As noted by Harvison Young J. in Lockridge, “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”.[^18]

[54] I have reviewed the affidavits of Ms. Ratushny and Ms. Hayman and find that the following paragraphs are opinion evidence or are argumentative and therefore will be struck:

(1) In the second sentence of paragraph 5 of the Affidavit of Kim Ratushny, sworn December 17, 2023, Ms. Ratushny states: “As set out in the Plan, Grade I properties contribute to the RPHCD's cultural heritage value through their landscaped setting, architecture, and environment.” This is argument and is struck from Ms. Ratushny’s Affidavit.

(2) At paragraph 43 of Ms. Ratushny’s Affidavit, sworn December 17, 2023, she states: “Based on my review of the materials, I have not seen any evidence that my written submissions and architect reports were placed before the Built Heritage Committee and/or City Council”. This is argument and must be removed.

(3) At paragraph 18(a) of the Affidavit of Ms. Hayman, sworn December 18, 2023, Ms. Hayman states: “I noted that the mass of the Third Application was not consistent with 484 Cloverdale”. Although Ms. Hayman’s statement in that paragraph is a quote from her submissions on the Intervenor’s application for a Heritage Permit, it is argumentative in the context of the present Application for Judicial Review and is therefore struck.

(4) At paragraph 18(d) of the Affidavit of Ms. Hayman sworn December 18, 2023, Ms. Hayman uses the words “still in blatant defiance of the RPHCD Plan”. Although Ms. Hayman’s statement in that paragraph is a quote from her submissions on the Intervenor’s application for a Heritage Permit, the use of the words “still in blatant defiance of the RPHCD Plan” is argumentative in tone. These words are struck.

(5) At paragraph 19 of Ms. Hayman’s Affidavit, sworn December 18, 2023, she states: “I reviewed the first Heritage Impact Assessment (“HIA v.1”) that was uploaded to DevApps and notice a number of inconsistencies/errors.” This statement is argumentative in tone, even though it too was part of the submissions that were made to Mr. Juarez. That statement is struck from Ms. Hayman’s Affidavit.

(6) At paragraph 24 of Ms. Hayman’s Affidavit, sworn December 18, 2023, she states: “I am of the view that HIA v.2 still contains several of the same errors as set out in my previous correspondence to Mr. Juarez”. This is argument and must be struck from Ms. Hayman’s affidavit.

(7) At paragraph 26 of Ms. Hayman’s affidavit, sworn December 18, 2023, she states: “The public, including RPRA and its members, were denied the opportunity to make oral submissions at City Council.” This statement is argumentative and must be struck.

(8) Paragraphs 2-4 of Ms. Hayman’s supplementary affidavit, sworn March 22, 2024, constitute argument on the application for judicial review. They are struck.

(9) At paragraph 15 of Ms. Hayman’s supplementary affidavit, sworn March 22, 2024, Ms. Hayman states that the Intervenor’s first application for a heritage permit was for a building with a footprint “more than double that of the neighbouring Grade 1 home. The dwelling’s depth (length) of 48 m was more than four times that of the adjacent home”. This is argument and is therefore struck.

(10) At paragraph 21 of Ms. Hayman’s supplementary affidavit, sworn March 22, 2024, she states “the First Application was approved by the City with significant conditions”. The word “significant” is argument and is struck.

(11) At paragraph 23 of Ms. Hayman’s supplementary affidavit, sworn March 22, 2024, she states: “The new proposed structure had only nominal adjustments to mass, reducing the height from 9 m to 8.5 m, the length from 48 to 42 m, and the building footprint from 464 to 462 m2, while increasing the GFA from 744 to 777.55 m2”. This sentence constitutes argument and must be struck.

(12) At paragraph 28 of Ms. Hayman’s supplementary affidavit, sworn March 22, 2024, she states: “In or about March 2023, on the eve of the appeal hearing, the City and the Owner engaged in closed door discussions regarding the settlement of the appeal and the submission by the Owner of a further revised application for a heritage permit”. This is argument and is struck from Ms. Hayman’s supplementary affidavit.

(13) The first sentence of paragraph 30 of Ms. Hayman’s supplementary affidavit, sworn March 22, 2024, reads as follows: “An expert volumetric analysis commissioned by Ms. Ratushny indicates that the above-grade bulk or mass of the modified proposed structure from the Second Application was over 3.5 times that of the neighbouring Grade I property.” This sentence is argumentative and is therefore struck.

(14) The words “despite persistent efforts” are struck from paragraph 31 of Ms. Hayman’s supplementary affidavit, sworn March 22, 2024, because they are argumentative.

(15) Paragraph 34 of Ms. Hayman’s supplementary affidavit, sworn March 22, 2024, reads as follows: “In support of the Third Application, the Owner also submitted a new Cultural Heritage Management Assessment (“CHIS”) prepared by Commonwealth Historical Resource Management which relied on inconsistencies and material omissions of fact to conclude that the amended structure complied with the RPHCD Plan”. The portion of that sentence which is in italics must be struck because it is argument.

(16) The word “terse” is struck from paragraph 36 of Ms. Hayman’s supplementary affidavit, sworn March 22, 2024.

(17) All of paragraphs 42 and 43 of Ms. Hayman’s supplementary affidavit, sworn March 22, 2024, are argument and must be struck.

(18) Paragraph 57 of the supplementary affidavit of Ms. Hayman, sworn March 22, 2024, is struck in its entirety because it constitutes argument.

Speculative Evidence

[55] 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.[^19]

[56] I find that paragraphs 50 and 51 of Ms. Hayman’s supplementary affidavits, sworn March 22, 2024, in which Ms. Hayman provides her understanding of how the Annotated Rockcliffe Park Heritage Conservation District Plan is used by City Planning staff to be speculative. They are therefore struck.

Conclusion Regarding Motion to Strike Affidavit Evidence

[57] I conclude that some of the evidence tendered is inadmissible and should be struck. The decisions on admissibility and weight with respect to the rest of the evidence should be left to the panel for the reasons I have set out.

[58] Therefore, the motion to strike evidence in the Applicant’s affidavits is allowed to the extent set out in these reasons above, and otherwise dismissed without prejudice to the City’s right to contest the admissibility before the hearing panel.

Issue Three: Should the Notices of Examination Be Struck?

[59] On February 13, 2024, the Applicant served two notices of examination for City employees, Luis Juarez and Adrian van Wyk, for the purposes of cross-examination on all issues relevant to the Application.

[60] Luis Juarez was the City Planner assigned to the preparation of the staff report to the BHC and Council for the heritage application that is the subject of the Application for Judicial Review. Adrian van Wyk was the City Planner who prepared the staff report for the previous application and revised application.

[61] The City argues that the staff report recommending approval of the new building and the meetings of both the BHC and City Council took place in public. Thus, as a matter of public record, the basis of the decision is known. No further evidence of private discussions revealed through examinations should be admissible.

[62] The Applicant’s position is that Rule 39.03 of the Rules of Civil Procedure permits a party to an application for judicial review to subpoena a witness if they have relevant evidence regarding the issues the Court must decide. This right exists in all Applications, including those for judicial review.[^20]

[63] Establishing that there is a valid basis for the examination is conceptually distinct from the scope of the examination in my view. Therefore, I will examine each issue separately.

[64] The Ontario Court of Appeal provided useful guidance on the right to conduct a r. 39.03 examination in relation to an issue raised in an application for judicial review. In Payne, the applicant challenged a decision of the Ontario Human Rights Commission (the Commission) dismissing her human rights complaint. In her application for judicial review, the applicant alleged that the Commission dismissed her complaint on the basis of extraneous factors, such as cost or other strategic concerns. The Commission provided no reasons for its decision to dismiss the applicant’s human rights complaint and therefore, she had no way of knowing the real reasons for the dismissal. However, affidavit evidence provided on the motion for an order for the examinations suggested that the Commission may have relied upon such considerations in dismissing the complaint.

[65] In Payne, Sharpe J.A. stated, for the majority, that there is a prima facie right to conduct a r. 39.03 examination in relation to an issue relevant to the application for judicial review, but that the right is subject to the following limits:

(i) No Right of Discovery - There is no right to examination for discovery on an application for judicial review.

(ii) Deliberative Secrecy - An examination should not be used to delve into the actual decision-making process of the tribunal. However, this principle must be balanced with the right of the citizen who has been affected by the tribunal's decision to effective judicial review.

(iii) Factual foundation – Sharpe J.A. held that an examination should be permitted in the context of an application for judicial review when the party seeking the examination has presented “some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed”.[^21]

[66] In the present case, I find that the Applicant has provided a basis for clearly articulated and objectively reasonable concerns related to the present application for judicial review as follows:

(i) The permit may have been granted on the basis of an irrelevant consideration flowing from a settlement of the appeal before the Ontario Land Tribunal.

(ii) The Applicant’s right to procedural fairness may have been violated when the City failed to: (1) include certain submissions by the RPRA's representatives to the BHC and City Council; and, (2) disclose the dimensional information of the impugned design, given that the Intervenor’s documents/drawings were not legible in the documents made accessible to the public.

(iii) The Decision-Maker(s) may have made the Decision(s) in the absence of any evidence that the requirements of s. 7.4.2.3 of the Rockcliffe Park Heritage Conservation Plan and By-Law No. 2008-250 were met.

(iv) The Decision(s) may have unreasonably deviated from the practice set out in the Annotated Rockcliffe Park Heritage Conservation District Plan.

[67] Therefore, I find that the Applicant has a right to examine the City Planner who was involved in the application that is the subject of the present judicial review. That person is Luis Juarez.

[68] Mr. van Wyk, on the other hand, was not involved in the application that concerns us. In Ontario v. Rothmans Inc., this court held that the notion of proportionality is a factor in determining the scope of an examination for discovery and is also a factor in determining the scope of an examination in the context of an application or a motion.[^22] I agree with this view and find that it is not appropriate to examine Mr. van Wyk because, given his limited involvement in the decision(s) in issue in the Application, to do so would extend the scope of the examination beyond what is reasonable and proportionate in the circumstances.

[69] I reject the City’s argument that because the Decision(s) was/were rendered in public there should be no right to examine a witness about the above-noted concerns. Like the decision in Payne, there were no reasons provided for the Decision(s) in the present case. Therefore, the Applicant has no way of knowing whether any of the concerns played a role in the Decision(s). The examination of Mr. Juarez is therefore permissible.

Issue 4: What is the Appropriate Scope of the Examination?

[70] The City objects to the scope of the examinations as an improper “fishing expedition”. It states that the proposed examinations are in the nature of, or even beyond, an examination for discovery. The law is clear that the scope of a cross-examination of a deponent for an application or motion is narrower than an examination for discovery.[^23]

[71] The Applicant, on the other hand, submits that the only factor determining the scope of an examination is relevancy.

[72] The Ontario Court of Appeal’s decision in Payne also provides guidance on the scope of a Rule 39.03 examination in the context of an application for judicial review.

[73] The majority in Payne noted that in rendering a decision on the right to examine in the context of the judicial review of a Commission decision, one had to bear in mind that the Commission had been entrusted with exclusive jurisdiction to determine fundamental human rights. That context is very important. As the majority stated: “the rights conferred by the Code are fundamental, quasi-constitutional rights which embody fundamental values of public policy". For that reason, the majority found that it would be entirely inconsistent with a fundamental human right if the Commission were, as it was alleged, to have dismissed a complaint for reasons of cost or because of “strategic concerns”.[^24]

[74] Therefore, the majority permitted the Applicant to supplement the record of proceedings on judicial review with evidence obtained on an examination of two Commission witnesses. However, the Court narrowly circumscribed the scope of those examinations as follows:

…the appellant is entitled to examine the Registrar as to what documents, facts, considerations, or recommendations not already revealed by the record filed on judicial review were before the commissioners, to inquire as to whether "strategic factors" formed a basis for the commissioners' decision, and to inquire whether there were any reasons for the determination not revealed in the reasons given the appellant.[^25]

[75] The complexity of the issues in the present case, the rights affected, and the deliberative process are different from those in Payne. The present application for judicial review does not have an impact on the Applicant’s fundamental human rights. This does not mean that the impugned decision(s) is/are unimportant. However, the Applicant does not have a statutory right to participate in the decision-making process[^26] and the process itself does not involve a quasi-judicial exercise of power. These factors should be taken into account in determining the scope of the proposed examinations in the present case.

[76] The Applicant provided a non-exhaustive list of approximately 43 issues that they intended to put to the two witnesses during the examinations. A copy of that list is provided at Appendix A of this decision. Applicant counsel objected to the court’s request that she provide the list, arguing that she had discharged the evidentiary burden of demonstrating that “the individuals they seek to examine likely have relevant evidence”.[^27] Nothing further was therefore required. I disagree with the Applicant on this point.

[77] The Court of Appeal clearly stated in Payne that “the party serving a notice of examination may be required to specify the scope of the proposed examination”.[^28]

[78] I find that the non-exhaustive list of issues provided by the Applicant essentially amounts to an examination for discovery. It is not proportionate to the nature of the decision-making power in issue, the rights of the parties involved and the complexity of the case. I find that it would be an abuse of process to permit the Applicant to engage in the sweeping inquiry they are proposing.

[79] I am therefore circumscribing the scope of the examination. The Applicant will be permitted to examine Mr. Juarez, for a maximum of two hours, about the following issues:

(a) What documents, facts, considerations or recommendations not already revealed by the record filed on judicial review were before the BHC and City Council when they made their recommendations and decision;

(b) What evidence of compliance with the requirements of s. 7.4.2.3 of the Plan and the By-Law were put before the BHC and City Council in July 2023;

(c) Whether, to what extent and how the settlement of the OLT appeal was a factor in the recommendation to City Council to approve the application for a heritage permit;

(d) Why the Applicant was not provided with the dimensional information of the impugned design as requested;

(e) Why certain submissions by the RPRA's representatives were not provided to the BHC and City Council.

(f) Whether Mr. Juarez used the Annotated Plan in preparing the report to the BHC in 2023 and if so, how and if not, why not.

[80] The Applicant is not permitted to examine Mr. Juarez on any issue not included in the list above.

Issue Five: Should the Subpoena Duces Tecum be struck or narrowed in scope?

[81] The Notice of Examination for Mr. Juarez includes a requirement that Mr. Juarez bring the following documents and things to the examination:

(i) A complete copy of the Application Record;

(ii) All correspondence including, but not limited to, emails, texts, or other electronic messages exchanged between the City of Ottawa and the Intervenor, Linebox, or any representative of the Intervenor, in relation to 480 Cloverdale Road, in the possession of the City of Ottawa, subject to privilege.

(iii) Any notes taken by City of Ottawa staff during or after meetings/consultations between City staff and Mr. Wang/his representatives regarding the various applications for a Heritage Permit for 480 Cloverdale Rd. from November 2021 (date of the First Application that was deferred by the BHC on the consent of the owners of the Subject Property due to a violation of inter alia, mass limits) to the date that City Council approved the impugned Third Application for a Heritage Permit.

(iv) All documentation (including but not limited to emails, text messages, notes, letters), if any, provided to the City of Ottawa staff by the Intervenor (or anyone representing the Intervenor, such as his architect) with respect to the First Application, Second/Revised Application, and Third Application for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd..

(v) All other documents including, but not limited to, reports, notes, drafts (including comments on drafts), photographs, charts, plans, surveys, calculations, and information recorded or stored on any device in the possession, control, or power, of the City of Ottawa which relate to 480 Cloverdale Road.

(vi) All internal correspondence between City Staff concerning the consideration of the First Application, Second/Revised Application, and Third Application for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd., including but not limited to the City of Ottawa staff’s consideration of the mass and/or height of the proposed build, the RPRA’s requests for legible materials, the RPRA’s submissions on mass, and the Owner/Intervenor’s dismissal of his appeal to the Ontario Land Tribunal, subject to privilege.

(vii) Any documentation (including notes) of any opinions solicited by the City staff, either internally or externally, concerning the mass with respect to the First Application, Second/Revised Application, and Third Application for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd.

(viii) Any documentation (including notes) of any advice provided by City of Ottawa staff to the Intervenor (or anyone representing the Intervenor, such as his architect), in between the date of his First Application for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd. and the date that the Third Application for a Heritage Permit was finally approved by City Council.

(ix) Any more recent versions of the Annotated Rockcliffe Park Heritage Conservation District Plan (Annotated Plan), if any exist, than the one provided.

(x) Any correspondence to the City Staff re: the dissemination and/or intended use of the Annotated Plan or concerning the application of the Annotated Plan.

(xi) All City of Ottawa staff reports to the Built Heritage Sub-Committee, from 2016 - to present, regarding properties designated under Part V of the Ontario Heritage Act and located in the Rockcliffe Park Heritage Conservation District.

(xii) A list of all documents over which the City of Ottawa claims privilege and the nature of the privilege asserted.

[82] The Applicant states that the request for the above-noted documents is based on a proper evidentiary record provided by the affidavits they have submitted on this motion. The Applicant states that the marked departure of the Decisions in issue in the present judicial review application from Council’s past decisions on the applications for a heritage permit for 480 Cloverdale Road raises a reasonable inference that the City’s records will reveal that the City considered irrelevant factors regarding the approval of the second application. The Applicant also argues that it is reasonable to assume that past City Staff Reports to the BHC from 2016 to present will demonstrate a consistent practice with regard to mass and height consistency.

[83] The City objects to the breadth of the request for document production arguing that it is a fishing expedition and therefore, an abuse of process.

[84] Where a request for documents to be produced at an examination is overly broad, the court can infer that “fishing” is the purpose behind the summons.[^29]

[85] In my view, the request for documents set out above is overly broad. It amounts to a general discovery of the City and would be an abuse of process. I will permit the Applicant to ask Mr. Juarez to produce documents that clearly relate to the permissible issues for examination that I have set out above under Issue 4: What is the Appropriate Scope of the Examination? The relevance of the document to the issue must be readily apparent and not remote. The Applicant will not be permitted to request documents that do not clearly relate to the issues set out above under Issue 4.

Conclusion and Costs

[86] The motion to strike the affidavits of Michele Hayman, Kim Ratushny and Darcy Charlton is allowed in part. Parts of the affidavits of Ms. Hayman and Ms. Ratushny are struck. However, nothing in the affidavit of Mr. Charlton is struck at this time. It will be for the panel to determine the admissibility of the remaining evidence.

[87] The component of the motion dealing with the examinations of Luis Juarez and Adrian van Wyk is allowed in part. The notice of examination of Adrian van Wyk is struck, but the notice of examination of Luis Juarez is maintained, with some restrictions on the length and scope of the examination and on the document production required.

[88] The parties’ success on this motion is divided. However, the Applicant has been somewhat more successful on the motion than the Respondent. The Applicant has succeeded in establishing that some of the evidence in the affidavits should be put to the panel for a decision on its admissibility. The Applicant has also succeeded in defeating the motion to quash the notice of examination of Luis Juarez.

[89] Costs should not be assessed as a mathematical calculation based on the percentage of success; courts should avoid making distributive costs awards and should not “analyze costs awards as if one were grading a law school exam with a marking grid for each question”.[^30] However, reductions from the parties’ costs claimed in light of divided success does not necessarily equate to a distributive costs award.[^31]

[90] I share the view expressed in ASG Tech Group that it would be unjust to deny the Applicant any costs because there has been divided success.[^32]

[91] Rule 57.01 sets out a non-exhaustive list of factors to be considered by the court in exercising that discretion. Rule 1.04(1.1), which is also applicable, requires the court to make orders that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.

[92] Costs awards should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than an exact measure of the actual costs to the successful litigant.[^33] The overall objective is fixing an amount that is fair and reasonable in the particular proceeding, having regard to the expectations of the parties concerning the quantum of costs.[^34]

[93] I have considered all relevant factors in exercising my discretion to fix those costs. Without going through every factor in detail, I note the following:

(a) The Applicant informed the City that they would be filing affidavits and notices of examination as early as October 19, 2022 at a case conference. At the case conference, the City and the Intervenor took the position that the Applicant was not entitled to file affidavits or conduct examinations.

(b) The Applicant provided a summary of the intended affidavit evidence to the City on October 27, 2023. However, at a case conference to set a timetable for the litigation on October 31, 2023, the City did not state that it intended to bring a motion objecting to the affidavit evidence. Therefore, the motion was not included in the timetable.

(c) The Applicant served three affidavits on December 18, 2023 and requested the availability of Mr. Juarez and Mr. van Wyk on February 6, 2024.

(d) The City subsequently sought a case conference to schedule the present motion, which was convened on March 6, 2024. The City’s delay in moving forward with the motion to quash and strike has resulted in the need to reschedule the hearing on the merits of the Application from May to September 2024. The motion could have been scheduled at the case conference on October 31, 2023, with the requirement that the Applicant serve and file the affidavits and notices of motion in advance of the motion so that it could be dealt with expeditiously.

(e) The Applicant faults the City for not attempting to parse out a nuanced position on the contents of the affidavits and taking a “scorched earth” approach to the motion. However, it is clear from the correspondence between the parties that the Applicant’s position was also “all or nothing”. The Applicant was convinced that all of the contents of the affidavits were admissible and that both notices of examination should be maintained. I do not see evidence on the part of either party to negotiate a more nuanced approach to the issues on the present motion.

(f) As is evident from this decision, the City’s position on the motion was not unsupported at law, as the Applicant maintained in their correspondence and materials on the motion. The Respondent prevailed on some parts of the motion.

(g) The City’s Bill of Costs for the present motion is $12,679.00 on a full indemnity basis. The Applicant’s Bill of Costs for the motion is $35,459.94 on a full indemnity basis.

(h) The Applicant put approximately 105 hours of work into the motion, with a responsible allocation of work to the appropriate fee earner.

(i) The Respondent put approximately 67 hours of work into the motion with a similarly responsible allocation of work to the appropriate fee earner.

(j) The hourly rates of all counsel on the file are reasonable, given their levels of experience.

[94] In light of the foregoing, having weighed the factors in Rule 57.01, I find that the fair and reasonable amount of costs payable by the City to the Applicant is $7,500. It is payable within 30 days of the date of this decision.

Justice K.A Jensen

Date: May 13, 2024

Appendix “A”

Non-Exhaustive List of Issues on Cross-Examination

The RPRA seeks to cross-examine Adrian Van Wyck and Luis Juarez on, inter alia, the following issues:

a. Meetings/consultations between the City staff (who made the recommendation that form the basis of the decision), and meetings/consultations between City staff and Mr. Wang or his representatives, regarding the various applications for a Heritage Permit for 480 Cloverdale Rd. from November 2021 (date of the First Application that was deferred by the BHC on the consent of the owners of the Subject Property due to a violation of inter alia, mass limits) to the date that City Council approved the impugned Third Application for a Heritage Permit.

b. Any advice provided by City of Ottawa staff to Mr. Wang or his representative regarding his various applications for a Heritage Permit for 480 Cloverdale Rd.

c. Regarding the issuance of Heritage Permits in the Rockcliffe Park Heritage Conservation District (“RPHCD”), City of Ottawa process/practice/past decisions regarding:

a. The information that is required by the City of Ottawa and its staff from Hermitage Permit applicants in support of an application for a Heritage Permit and why;

b. The analysis that is conducted by City of Ottawa staff when reviewing an application for a Heritage Permit and why;

c. The analysis that is conducted by City of Ottawa staff when reviewing a Heritage Impact Assessment submitted by a Heritage Permit applicant and why;

d. The analysis that is conducted by City of Ottawa staff when preparing a Staff Report to the Built Heritage Sub-Committee regarding an application for a Heritage Permit and why;

e. The information that is provided by City of Ottawa staff in its analysis, report, and/or presentation of information to the Built Heritage Sub-Committee regarding an application for a heritage permit and why;

f. The information that is provided by City of Ottawa staff in its analysis, report, and/or presentation of information to City Council regarding an application for a heritage permit and why;

g. The information that is made available to the public by City of Ottawa staff concerning a Heritage Permit application and why;

h. What City of Ottawa staff are to do if they are told that the information publicly available regarding a Heritage Permit application is not legible and why;

i. The definitions and guidelines used/applied by City of Ottawa staff when reviewing an application for a Heritage Permit and why;

j. What information must be presented by City staff to the Built Heritage Committee regarding a Heritage Permit application and why;

k. What information must be presented by City staff to City Council regarding a Heritage Permit application and why;

l. The analysis of mass and height conducted by City of Ottawa staff or any third party of the Grade I House in the associated streetscape of the proposed build seeking a Heritage Permit, along with the use of such information and why;

m. The comparison of mass and height of the Grade I House in the associated streetscape with that of the proposed build by City of Ottawa staff or any third party, along with the use of such information and why; and

n. The treatment of the RPHCD Plan limits on height and mass by City of Ottawa staff in past City of Ottawa staff reports including, but not limited to, all prior applications of Mr. Wang for a heritage permit Re 480 Cloverdale Avene.

d. Whether or not City of Ottawa staff followed the above listed City processes/practices when reviewing the First Application, Second/Revised Application, and Third Application for a Heritage Permit for a new single detached dwelling on the property known municipally as 480 Cloverdale Rd.

e. If City of Ottawa staff didn’t follow the above listed City of Ottawa processes/practices when reviewing the First Application, Second/Revised Application, and Third Application for a Heritage Permit for a new single detached dwelling on the property known municipally as 480 Cloverdale Rd., why did it not and/or who instructed City of Ottawa staff to not follow said processes/practices?

f. If City of Ottawa staff didn’t follow the above listed City of Ottawa processes/practices when reviewing the First Application, Second/Revised Application, and Third Application for a Heritage Permit for a new single detached dwelling on the property known municipally as 480 Cloverdale Rd., did City of Ottawa staff advise the Built Heritage Sub-Committee and City Council that it had failed to follow said processes/practices and, if not, why and on whose authority?

g. The analysis that was conducted by City of Ottawa staff, and why, in their preparation of the reports to the Built Heritage Subcommittee regarding the First Application, Second/Revised Application, and Third Application for a Heritage Permit for a new single detached dwelling on the property known municipally as 480 Cloverdale Rd;

h. The decision taken by City of Ottawa staff to either include or exclude submissions and/or evidence that was before City of Ottawa staff in the preparation of its reports to the Built Heritage Sub-Committee with respect to the First Application, Second/Revised Application, and Third Application for a Heritage Permit for a new single detached dwelling on the property known municipally as 480 Cloverdale Rd. and why.

i. Any representations and/or misrepresentations by City of Ottawa Staff to the Built Heritage Subcommittee regarding the First Application, Second/Revised Application, and Third Application for a Heritage Permit for a new single detached dwelling on the property known municipally as 480 Cloverdale Rd;

j. The decision taken by City of Ottawa staff to either include or exclude from the Record of Proceedings submissions and/or evidence that was before City of Ottawa staff, the Built Heritage Sub-Committee, or City Council with respect to the First Application, Second/Revised Application, and Third Application for a Heritage Permit for a new single detached dwelling on the property known municipally as 480 Cloverdale Rd. and why.

k. Any changes to the conditions imposed on any Heritage Permits issued to the Intervenor/owner of 480 Cloverdale Rd.

l. City of Ottawa staff’s consideration of the expert reports of Darcy Charlton that were appended to the Submissions of Kim Ratushny to the Built Heritage Sub-Committee with respect to the Third Application for a Heritage Permit for a new single detached dwelling on the property known municipally as 480 Cloverdale Rd..

m. The City of Ottawa Staff’s consideration of the Cultural Heritage Impact Assessment prepared by Commonwealth Historical Resources Management, dated June 2023 that was submitted to the City by the owner of 480 Cloverdale Rd..

n. The City’s consultations with the owner and/or their representatives in respect to the First Application, Second/Revised Application, and Third Application for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd..

o. Where the applicant for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd. addresses the issue of mass and/or height consistency between the proposed build and the Grade I home on the associated streetscape in its Applications for a Heritage Permit.

p. Where City of Ottawa staff addresses the issue of mass and/or height consistency between the proposed build and the Grade I home on the associated streetscape in its analyses of the applications for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd..

q. Where City of Ottawa staff advised the Built Heritage Sub-Committee and/or City Council regarding the issue of mass and/or height consistency between the proposed build and the Grade I home on the associated streetscape with respect to the applications for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd..

r. The creation of the Annotated Rockcliff Park Heritage Conservation District Plan and its use by City Staff, including its use when analyzing the First Application, Second/Revised Application, and Third Application for a Heritage Permit for a new single detached dwelling on the property known municipally as 480 Cloverdale Rd. and why.

s. The City of Ottawa’s inclusion of the RPRA in the pre-consultation process with respect to the First Application and Second/Revised Application for a Heritage Permit for a new single detached dwelling on the property known municipally as 480 Cloverdale Rd. and why.

t. The City of Ottawa’s failure to include the RPRA in the pre-consultation process with respect to the Third Application for a Heritage Permit for a new single detached dwelling on the property known municipally as 480 Cloverdale Rd. and why, including but not limited to question surrounding the correspondence sent by Luiz Jaurez of May 8, 2023 wherein he stated “In this case, the complete application was offered in the context of an ongoing matter before the Ontario Land Tribunal as a possible resolution”.

u. The impact of the decision on the Rockcliff Park Heritage Conservation District, the RPRA, the RPHCD Plan, and the Annotated RPHCD Plan.

v. Inconsistencies in the reasons between the City of Ottawa staff’s evaluation of the First Application and Second/Revised Application vis-à-vis the City of Ottawa staff’s evaluation Third Application for a Heritage Permit for a new single detached dwelling on the property known municipally as 480 Cloverdale Rd. and why.

w. The relationship between the recommendations made by City of Ottawa staff in its reports and the decision that is typically made by the Built Heritage Sub-Committee.

x. Errors and inconsistencies in the information proffered by City staff and/or the Intervenor/owner as it relates to the First Application, Second/Revised Application, and Third Application for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd..

y. The strategic concerns, that are otherwise not legally relevant, that City of Ottawa staff members took into account when they drafted their Report to the Built-Heritage Sub-Committee with respect to the Third Application for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd..

z. The comments made by Luis Juarez in the Heritage Impact Assessment which was produced in the Record of Proceedings but never made available to the public and their purpose and meaning;

aa. The changes in the findings and recommendations of City of Ottawa staff regarding whether the proposed design met all requirements, and their purported justification for same, with respect to the First Application, Second/Revised Application, and Third Application for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd..

bb. Excessive reliance upon staff for the decision-making process when putting a recommendation to the City of Ottawa that was different than the previous recommendations without justification for the change with respect to the First Application, Second/Revised Application, and Third Application for a Heritage Permit for the construction of a single detached dwelling on the properly known municipally as 480 Cloverdale Rd..

CITATION: Rockcliffe Park Residents Association v. City of Ottawa, 2024 ONSC 2690

COURT FILE NO.: DC-23-2812

DATE: 2024/05/13

DIVISIONAL COURT - ONTARIO

RE: Rockcliffe Park Residents Association, Applicant

AND:

The City of Ottawa, Respondent

BEFORE: Justice K.A. Jensen

COUNSEL: Katie Black and Desneiges Mitchell Counsel, for the Applicant

Timothy Marc and Kellan Mouton Counsel, for the Respondent

HEARD: March 26, April 3, 2024

ENDORSEMENT

Jensen J.

Released: May 13, 2024

[^1]: R.S.O. 1990, c. O.18.

[^2]: Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316 at para 47.

[^3]: See for example: Beraskow v. Canadian Internet Registration Authority, 2023 ONSC 1412, at para 14.

[^4]: Sierra Club v. Ontario, 2011 ONSC 4086

[^5]: Gutierrez v. The Watchtower Bible and Track Society of Canada et al. 2019 ONSC 3069

[^6]: Holder et al. v. Wray et al., 2018 ONSC 6133

[^7]: Lockridge at para 50. See also: Botelho v. Faulkner, 2020 ONSC 6471 in which Fowler Byrne J. also adopted the hybrid approach.

[^8]: York Condominium Corporation No. 21 v. All Unit Owners and Mortgagees of Record of York Condominium Corporation No. 21, 2021 ONSC 4600 at para 45; and Elementary Teachers’ Federation of Ontario v. Ontario (Labour), at para. 22

[^9]: Sierra Club, at para 13

[^10]: Lachance v. Ontario (Solicitor General), 2023 ONSC 7143

[^11]: Lachance, at para 11.

[^12]: Lachance, at para 12.

[^13]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov).

[^14]: Lockridge at para 50; Lachance, at para 11.

[^15]: Bernard v. Canada (Revenue Agency), 2015 FCA 263, at para 21.

[^16]: Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, at para 47. See also: CCSAGE Naturally Green v. Director, Sec. 47.5 EPA, 2018 ONSC 237, at para 68.

[^17]: Lovell v. Ontario (Minister of Natural Resources and Forestry), 2022 ONSC 423 (Lovell)

[^18]: Lockridge, at paragraph 118.

[^19]: See: Rules of Civil Procedure, R. 4.06(2) & 39.01(5); Lockridge at para 118.

[^20]: Payne v. Ontario Human Rights Commission ("Payne"), at para 162.

[^21]: Payne, at para 172.

[^22]: Ontario v. Rothmans Inc., 2011 ONSC 2504, at paras 143 and 164 (Ontario v. Rothmans Inc.)

[^23]: Ontario v. Rothmans Inc., para 143; BOT Construction (Ontario) Ltd. v. Dumoulin, [2007] O.J. No. 4435 (S.C.J.) at para. 6.

[^24]: Payne, at paras 154 and 155.

[^25]: Payne, at para 181.

[^26]: S. 42(4.1) of the Ontario Heritage Act stipulates that Council must consult with the municipal heritage committee (which is the BHC in this case) prior to making a decision on an application for a heritage permit. However, there is no requirement to consult with a residents’ committee like the RPRA. It is however, the City’s practice to do so.

[^27]: Coburn v. Barber et al., 2010 ONSC 3342, para. 105.

[^28]: Payne, at paragraph 177.

[^29]: Coburn v. Barber et al., 2010 ONSC 3342, at para 101

[^30]: Mancinelli v. Royal Bank of Canada, 2020 ONSC 3743 at para. 39

[^31]: The Manufacturers Life Insurance Company v. ASG Technologies Group, Inc., 2020 ONSC 5957, at para 7 (ASG Tech Group)

[^32]: ASG Tech Group, at para 7.

[^33]: Zesta Engineering Ltd. v. Cloutier, [2002] OJ No. 4495 (CA) at para. 4; Davies v. Clarington (Municipality), 2009 ONCA 722 at para. 52.

[^34]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 OR (3d) 291 (CA) at paras. 26 and 38