2024 ONSC 5521

DIVISIONAL COURT FILE NO.: 300/24

DATE: 2024-10-04

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: CARMELA TACCONE and JOSEPH GALEA, Applicants -and- REGISTRAR, FUNERAL, BURIAL AND CREMATION SERVICES ACT, 2002, Respondent

BEFORE: FL Myers J.

COUNSEL: Imran Kamal, for the Respondent Sean Dewart and Ian McKellar, for the Applicants

HEARD at Toronto (by videoconference): October 4, 2024

ENDORSEMENT

[1] The applicants brought a motion to strike the affidavit of Ian Hember affirmed August 27, 2024. Mr. Hember is the Respondent and the statutory decision-maker in this application for judicial review. Prior to serving as Registrar, Mr. Hember had personal involvement in the projects that are the subject matter of the applicants’ claim.

[2] On receiving the applicants’ motion, I convened a case conference and had the Registrar of the court put the parties on notice as follows:

Please be advised the purpose of the case conference will be to consider the proposed motion summarily and, if necessary, to schedule the steps leading to a more formal motion hearing.

[3] For the reasons that follow, I find:

a. This is an appropriate case for the court to exercise its authority under Rule 50.13 (6)(d)(i) of the Rules of Civil Procedure to make an interlocutory order at a case conference;

b. This is an appropriate case to strike the impugned affidavit before the hearing of the application before a panel of this court; and

c. The Affidavit of Ian Hember affirmed August 27, 2024 is struck out.

[4] The applicants seek judicial review of the decision of the Registrar appointed under the Funeral, Burial and Cremation Services Act, 2002, SO 2002, c 33. The statute allows individuals to seek reimbursement of costs that they are required to incur on a burial site investigation required by the statute if the costs pose an undue financial burden.

[5] In the decision at issue in this proceeding, the Registrar refused the applicants’ request for reimbursement of approximately $340,000 that they say they were required to spend on a burial site investigation under the statute. The Registrar had previously approved payment of approximately $165,000 on account of undue financial burden of the burial site investigation. He determined that the remaining amounts claimed by the applicants were spent by them in Stage 4 investigations that were beyond the scope of the burial site investigation required under the statutory scheme.

[6] This is apparently the first time this statute and the registrar’s statutory power to approve or refuse a reimbursement request have been before the court.

[7] As required by s. 10 of the Judicial Review Procedure Act, RSO 1990, c J.1, the Registrar has filed a Record of Proceedings. It consists of some 50 documents amounting to approximately 750 pages.

[8] There was no formal oral hearing held by the Registrar. The applicants’ requests for reimbursement were made in correspondence. The parties engaged in a somewhat iterative process of bilateral communication that led to the Registrar making a formal, written refusal decision on March 5, 2024. The applicants asked the Registrar to reconsider his decision. He refused and made his decision final by letter date April 18, 2024.

[9] Both the March 5 and April 18, 2024 decision letters written by the Registrar contain multi-page reasons for the decision. While the statutory scheme involves an esoteric subject matter, the actual decisions are readily understandable. The applicants claimed reimbursement for costs that they say they incurred on a statutory investigation of burial sites looking for human remains. The Registrar finds that the applicants failed to establish entitlement to more than the $165,000 previously approved and he says why he made that decision. The factual issues centred around whether the applicants established that they used the expensive process for searching for burial sites with human remains (using 3 mm mesh and wooden and plastic tools to excavate soil) or whether they just conducted a Stage 4 archeological block investigation for their own development purposes. The Registrar found that the Stage 4 investigation did not involve techniques and costs of screening soil for human remains (i.e., they used 6 mm mesh). The Registrar found that the costs claimed by the applicants related to their Stage 4 investigation rather than an investigation for burial sites with human remains under the statute.

[10] The issues are crystallized, understandable, and are accessible in the material filed.

[11] At 750 pages, the size of the Record of Proceedings is not especially daunting. However, the material uses some technical terms and maps that are beyond the ken of lay people.

[12] In addition to the Record of Proceedings, the Registrar has delivered a 38-page affidavit that describes the entire investigative process from beginning to end from the Registrar’s point of view. The affidavit gives some description of the statutory scheme and then goes through much of the Record of Proceedings providing a thorough chronology of events and communications between the parties from the Registrar’s perspective.

[13] The Affidavit would be unremarkable evidence in chief by a defendant in a piece of commercial litigation if the reimbursement right was contained in a contract and the applicants were suing to prove their entitlement to funds under the contractual terms.

[14] But this is not commercial litigation between private parties in a dispute over the intention and meaning of a contract. The Registrar in this case has exercised his statutory power of decision to deny the reimbursement to which the applicants claim entitlement under a statute.

[15] The Registrar’s decision is not subject to an appeal right. It is a final exercise of governmental authority.

[16] People who are detrimentally affected by government decisions have the right to ask the court to review the decisions. But the Court’s role in conducting a judicial review is quite different from the role of the government decision-maker. As explained by Stratas JA in Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22,

[19] Because of this demarcation of roles between this Court and the Copyright Board, this Court cannot allow itself to become a forum for fact-finding on the merits of the matter. Accordingly, as a general rule, the evidentiary record before this Court on judicial review is restricted to the evidentiary record that was before the Board. In other words, evidence that was not before the Board and that goes to the merits of the matter before the Board is not admissible in an application for judicial review in this Court. As was said by this Court in Gitxsan Treaty Society v. Hospital Employees’ Union, 1999 7628 (FCA), [2000] 1 F.C. 135 at pages 144-45 (C.A.), “[t]he essential purpose of judicial review is the review of decisions, not the determination, by trial de novo, of questions that were not adequately canvassed in evidence at the tribunal or trial court.” See also Kallies v. Canada, 2001 FCA 376 at paragraph 3; Bekker v. Canada, 2004 FCA 186 at paragraph 11.

[17] In 2019, the Supreme Court of Canada noted the distinction between the roles of the court and the administrative decision-maker even more starkly. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 the Supreme Court of Canada provided express direction to courts conducting judicial review, that their role is to consider the justifiability, transparency, and intelligibility of an administrative decision focusing first and foremost on the reasons for decision written by the decision-maker. At para. 84 of the Vavilov decision, the Court explained:

As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion [Notes omitted.]

[18] Paying respectful attention to the decision-makers’ reasons includes understanding the evidentiary record that was before him or her. But, in all but extreme cases, it does not include re-assessing the factual findings made by the decision-maker. The Supreme Court of Canada explained:

[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.

[126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, at para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: ibid.

[19] The requirements to pay respectful attention to the reasons in light of the record that was before the decision-maker, and to refrain generally from reviewing the decision-maker’s findings of facts, usually makes extraneous evidence that was not contained in the record before the decision-maker irrelevant.

[20] Applicants are required to adduce their evidence to the decision-maker. The decision-maker was required to provide his or her reasons to the applicants in the decision. A decision-maker cannot deliver post-decision evidence to explain or expand upon his or her decision while it is under review by the court. In fact, efforts to provide later clarification of a decision for the purpose of appeal may be seen to undermine the presumption of integrity enjoyed by the decision-maker. Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60, at paras 83 et seq.

[21] Generally speaking, therefore, in a judicial review proceeding, no additional evidence is admissible if it was not before the decision-maker.

[22] Exceptions exist, however. Justice Stratas explains in Association of Universities and Colleges Canada,

[20] There are a few recognized exceptions to the general rule against this Court receiving evidence in an application for judicial review, and the list of exceptions may not be closed. These exceptions exist only in situations where the receipt of evidence by this Court is not inconsistent with the differing roles of the judicial review court and the administrative decision-maker (described in paragraphs 17-18, above). In fact, many of these exceptions tend to facilitate or advance the role of the judicial review court without offending the role of the administrative decision-maker. Three such exceptions are as follows:

(a) Sometimes this Court will receive an affidavit that provides general background in circumstances where that information might assist it in understanding the issues relevant to the judicial review: see, e.g., Estate of Corinne Kelley v. Canada, 2011 FC 1335 at paragraphs 26-27; Armstrong v. Canada (Attorney General), 2005 FC 1013 at paragraphs 39-40; Chopra v. Canada (Treasury Board) (1999), 1999 8044 (FC), 168 F.T.R. 273 at paragraph 9. Care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider. In this case, the applicants invoke this exception for much of the Juliano affidavit.

(b) Sometimes affidavits are necessary to bring to the attention of the judicial review court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review court can fulfil its role of reviewing for procedural unfairness: e.g, Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980) 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). For example, if it were discovered that one of the parties was bribing an administrative decision-maker, evidence of the bribe could be placed before this Court in support of a bias argument.

(c) Sometimes an affidavit is received on judicial review in order to highlight the complete absence of evidence before the administrative decision-maker when it made a particular finding: Keeprite, supra. [Emphasis added.]

[23] The law is the same in Ontario. See: Gao v. Health Profession Appeal and Review Board, 2023 ONSC 742 at para. 16 and Keeprite cited above.

[24] In this case, counsel for the Registrar submits that the proposed evidence is helpful background for the court. Counsel submits that it will help the court understand how the various documents in the 750-page record fit together.

[25] I have no doubt that this is true to some degree. It can be very helpful to be led through a record of other peoples’ correspondence and thoughts. But the affidavit tells the court only the Registrar’s view of the materials. In many places, as highlighted by Mr. Dewart in the version of the affidavit appended to his case conference brief, the Registrar has provided his impressions, thoughts, opinions, or spin. In one paragraph in particular, he raises a concern that he feared that the applicants may have been engaged in fraudulent behaviour. None of this is in his reasons for decision.

[26] Mr. Dewart rightly notes that the lengthy affidavit will yield one equally long in response. Then cross-examinations will ensure. The Divisional Court panel will then be asked to find facts on contested evidence. That is not the role of the court in a judicial review proceeding. Moreover, if this case becomes bogged down in factual controversy, the scheduled December hearing date will surely be lost. Judicial review is supposed to be a summary and quick remedy. This is discussed in some of the case law dealing with requests for extension of time to bring a proceeding after the six-month limitation period under s. 5 of the JRPA.

[27] The proposed evidence in this case does not fit into the “background” exception recognized in the case law. First, the evidence very much exceeds the limited role of background and “goes to the merits” as described by Stratas JA. In addition, allowing a decision-maker to expand on his or her understanding of the evidence and approach to the decision, beyond the words of the decision itself, is contrary to, and undermines, the careful demarcation of roles of the court and the decision-maker.

[28] This case is not a close call in my view. The Registrar starts at the beginning and gives his evidence on each step of the way through the investigation(s) that were being conducted by the applicants that are then the subject matter of his impugned decision.

[29] The affidavit is not required simply to put documents before the court on a neutral basis and without commentary. The affidavit does not exhibit any documents. Rather, it refers in the main to documents that are already before the court in the Record of Proceedings. The sole use of the affidavit then it to provide the commentary (and in some places spin) to which the applicants object.

[30] While some of the impugned affidavit explains the statutory scheme that is hitherto unknown to the court, this is really submissions for a factum. In fact, interpretation of a statute comes better from counsel as submissions than from a layperson as evidence.

[31] Even to the extent that the affidavit has some helpful background about the statutory scheme, it is not appropriate to expand factum length by moving submissions to an affidavit.

[32] There are differing views about whether this type of decision is best made by the panel that hears the application or by a single judge in advance. Counsel for the Registrar submits that the better process would be to defer the applicants’ motion to the panel and then to allow the parties a few extra pages of factum to deal with the motion.

[33] There are two competing policies at play. First, if the evidence may be helpful to the panel to aid them in deciding the merits, then the panel may wish to see it. On that basis, they should be the ones who decide if the affidavit should be allowed. On the other hand, it is important to keep judicial review proceedings focused on the issues, orderly, organized, and concise. A judicial review proceeding is not a time to throw everything at the wall to see what sticks.

[34] In Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316 Harvison Young J (as she then was) reconciled the competing policies in this way:

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

[35] Had the affidavit consisted of a few paragraphs describing the statutory burial investigation regime in a way that is not discernible from the statute itself, case law, and authorities (like texts and Hansard), that would have been one thing. But a 158-paragraph marathon trip through all the evidence with the decision-maker’s otherwise unstated views, concerns, and theories added where helpful to his position in this proceeding is quite another.

[36] In my view this affidavit falls on the “clearly inadmissible” side of the line drawn by Harvison Young J. and others.

[37] Finally, I see no point in holding a formal motion process to make this decision. There is no evidence or fact finding needed to explain the affidavit evidence that is under discussion. I reviewed counsels’ written submissions before the case conference. Case law is well-known and was referred to by both counsel in their written submissions and orally. This is a common issue before this court. In fact, I was referred to some of these same cases just yesterday.

[38] Counsel had notice that the issue was on the table for resolution at the case conference. They also had notice that they were free to make submissions that different processes for resolution of the admissibility of the affidavit would be preferable from their clients’ perspectives. As noted above, the Registrar’s counsel did argue that the issue should be left to the panel and I have given reasons for rejecting that request.

[39] I am in as good a position now to assess the issues in the relevant case law as a judge would be if this matter were to be heard on a motion list in several weeks or months. It is in the interests of justice to save costs and delay on unnecessary processes. Resolving the issue summarily at a case conference keeps the schedule that will see this matter brought to a speedy hearing on its merits.

[40] Mr. Dewart asks me to defer the question of costs to the panel that hears the application. The Registrar’s counsel had no submissions to make on costs.

[41] If the applicants succeed in this application, then they are entitled to costs of this hearing. If they are unsuccessful, then striking the affidavit will prove to have been of little value or consequence to them. Accordingly, I award costs of the motion to the applicants in the cause. I can fix the costs if counsel cannot agree. Otherwise, they should be added to the parties’ Costs Outlines that must be uploaded to Case Center for the main hearing of the application.

FL Myers J.

Date: October 4, 2024