CITATION.: The Philosopher’s Wool Environmental Preserve v. The County of Bruce, 2025 ONSC 3117 COURT FILE NO.: DC-24-00000030-0000

DATE.: 2025-05-12

SUPERIOR COURT OF JUSTICE – ONTARIO

7755 Hurontario Street, Brampton ON L6W 4T6

RE:

THE PHILOSOPHER’S WOOL ENVIRONMENTAL PRESERVE,

Applicant

AND:

THE COUNTY OF BRUCE, Respondent AND:

JHT2INV DEVELOPMENT INC., added party intervenor (Moving Party)

BEFORE:

Justice D. Derstine

COUNSEL:

GILLESPIE, Eric for the Applicant

Email: egillespie@gillespielaw.ca

DAY, Mark E. for the Respondent

Email: mday@kwlaw.net

COCKBURN, Jamie and JOHNSON, Trenton for the added party intervenor (Moving Party)

Email: jcockburn@svlaw.ca , tjohnson@svlaw.ca

HEARD:

April 22, 2025, in person

ENDORSEMENT

[1] Philosophers Wool Environmental Preserve (“Philosophers”) has brought an application for judicial review to challenge the Corporation of the County of Bruce’s (“the County”) decision to approve a plan of subdivision in favour of JHT2INV Development Inc. (“the Developer”). The Developer has brought a motion, supported by the County, to dismiss the application for judicial review on grounds of jurisdiction and standing or, in the alternative, to strike the affidavit in support of the application in whole or in part.

A) Factual Overview

[2] The Developer seeks to develop a residential subdivision on lands within the boundaries of the Corporation of the Municipality of Kincardine (“Kincardine”). To complete the subdivision development the Developer had to follow the land use planning regulatory process set out in inter alia the Planning Act R.S.O. 1990 c.

P.13 as amended (“The Planning Act”).

[3] The first step in this process was an application to the municipality to amend a zoning by law (“the ZBLA). This was approved in July of 2023. The second step in this process was an application to a committee of the County for a Draft Plan of Subdivision Approval (“DPSA”). This was approved in September of 2023. It is this latter process which is sought to be reviewed by Philosophers.

[4] As required by the Planning Act, numerous public meetings and other forms of community engagement occurred in relation to the ZBLA and the DPSA. Philosophers and several other groups made representations. Expert reports were considered as well.

[5] There is an appeal route for decisions in relation to the DPSA to the Ontario Land Tribunal (“OLT”). Two features of this appellate process are of note to this application.

[6] The first is that although the process is called an appeal, in fact the Land Tribunal “steps into the shoes” of the approval authority and conducts a de novo hearing where evidence (usually expert evidence) is put forth and tested, submissions are heard, and the merits of the DPSA are assessed with reference to the criteria set forth in s.51(24) of the Planning Act. While the Land Tribunal must “have regard” to the decision below, it in no way reviews the propriety of that decision. Its function is to provide a new hearing to those having a right to require it.

[7] The second feature of this statutory appeal process is that it has recently been amended to deny the right of third parties like Philosophers to launch an appeal. Before 2019 third parties could appeal DPSA decisions. In 2019 the More Homes More Choices Act S.O. 2019 c.9 restricted the ability to appeal to the OLT to certain entities which do not include third parties. Hansard would suggest that this was done inter alia to speed up the appeal process. While Philosophers could have appealed the ZBLA decision to the Land Tribunal, it did not. It could not have appealed the DPSA decision to the OLT.

[8] Philosophers has brought an application to judicially review the DPSA decision. It does so on two grounds. The first is a broad ground alleging that the decision was made without having regard to the criteria found in s.51(24) of the Planning Act. The second is that the decision was fettered by the belief of the Mayor of Kincardine that any changes to the project were “above his pay grade”.

[9] In support of this application, Philosophers filed the affidavit of Tessa Gerling as a vehicle to advance a number of documents.

[10] The first category of documents are eighteen email communications between the affiant and concerned citizens on one hand and the Mayor and Councillors of the municipality on the other. The affiant attests that they were sent to the municipality but were not included in the Record of Proceedings. Their subject matter can be summarized as process-based concerns and objections to the development on environmental grounds. They include complaints that a petition from local residents was not mentioned at the County meeting on Sept 7, 2023. Most of the emails are after the DPSA decision.

[11] The second category of document are two environmental expert reports, one dated before and the other after the DPSA decision.

[12] The final document is a link to the video footage of a council meeting where the Mayor of Kinkardine makes a series of comments. The Application for judicial

review alleges that these comments are evidence that the Mayor and council fettered their discretion.

B) Standard Of Review

[13] All parties agree on the standard of review. The authority to quash judicial review applications flows from this Court's inherent jurisdiction to conduct judicial review. This discretion developed at common law and was later largely codified by statute. Despite the unique nature of motions to quash applications for judicial review, the standard rule 21 test generally applies. An application for judicial review generally ought to be quashed on motions to a single judge of this court where it is “plain and obvious” or “beyond doubt” that it cannot succeed for want of standing, jurisdiction or other criteria.

[14] The question I must ask myself is not whether I believe the court has jurisdiction, or whether the applicant for judicial review has standing, but rather whether it is plain and obvious that there is no jurisdiction vested in the Court or standing for the applicant for judicial review. If I believe that it is not obvious then the application to quash must fail and the matter must be considered on its merits by a panel of the Divisional Court.

C) Does This Court Lack Jurisdiction to Consider the Judicial Review?

[15] The Developer and the County have somewhat different reasons why they say this Court has no jurisdiction to hear a judicial review of the DPSA decision. I will first consider the position of the Developer, then that of the County.

1. The Position of the Developer: a deemed privative clause

[16] The Developer asserts that it was the will of the legislature that third parties no longer had the right to appeal such decisions and therefore the Courts ought to cede to accept this legislative design and not allow what they say is an OLT appeal in disguise. They say that the wide ambit of the judicial review sought is no more than asking for a wholesale review of the merits of the original decision and such a review (by way of appeal) had clearly been denied them by parliament.

[17] They say that if this position is not accurate then there is an incongruous situation where parties to the DPSA decision must appeal to the OLT and then with leave to this Court, while non-parties can immediately have a wider ambit of judicial review.

[18] This apparent incongruity was highlighted in Loeb v. Toronto (City), 2024 ONSC 277 (“Loeb”). Loeb was concerned with the granting of public interest standing and its dicta were in that context. Indeed, in that case there was not even any challenge to the jurisdiction of the Court. The dominant reason for the denial

of standing in that case is that the parties could only assert a private, not public interest and as such were unable to meet the test for public standing.

[19] Loeb was also heard without the guidance of the Supreme Court in Yatar

v. TD Insurance Meloche Monex, 2024 SCC 8 (“Yatar”) which clearly allows for judicial review for questions where there is no jurisdiction to bring an appeal. The Supreme Court emphasized that judicial review plays an important role in ensuring the rule of law and ensuring that public authorities are subject to the supervisory power of the superior courts. The Court reemphasized the constitutional nature of the right to seek judicial review.

[20] This constitutional dimension had earlier been raised in Canada (Minister of Citizenship and Immigration) v. Vavilov (2019) SCC 65 (“Vavilov”) where they stated at para 24: “because judicial review is protected by s.96 of the Constitution Act 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely”. Also to the same effect is Ontario Place Protectors v. Ontario, 2025 ONCA 183.

[21] The Developer relies as well on South Junction Triangle et. al. v. 1423 Bloor St. W et. al 2023 ONSC 7052. This case explicitly relied on the Ontario Court of Appeal’s ruling in Yatar which was overturned by the Supreme Court. The language relied on by the Court in South Junction was the very language which was much criticized by the Supreme Court.

[22] The apparent incongruity also was raised in the case of Rockcliffe Park Residents Association v. The City of Ottawa 2024 ONSC 6079. This was a post SCC Yatar case. In that case, in the context of a standing argument which the Court was clear to indicate was unnecessary for the disposition of the application, the Court said at para. 9:

“unlike the City and the owner, the Applicant has no appeal rights from the cities permitting decision. Moreover, if the City or the owner appeals the city's decision, their further appeal to this court is limited to issues of law. While judicial review has been widened by the Supreme Court of Canada, the parties judicial review rights may still be tempered by the existence of the appeal right. It is difficult to interpret the regulatory scheme as anticipating that opposing neighbors were given greater rights than the immediate parties”.

[23] The panel of the Divisional Court can consider whether the Developer’s argument that the will of Parliament to eliminate an appeal right in effect creates what I have called a deemed privative clause which ousts the jurisdiction for judicial review. For the reasons that follow I am not prepared to find that the matter is so settled as to make it plain and obvious that the Applicant Philosophers will not prevail in their position.

[24] Firstly, it is not the position of even the Developer that Parliament intended all judicial review by third parties to be ousted by the denial of appellate rights. The Developer in oral argument conceded that this Court had jurisdiction to determine traditional judicial review questions such as fettering.

[25] There is also at least an arguable case that it was not the intention of Parliament to preclude judicial review by third parties. On the facts of this case, OLT appeals are agreed by all parties to be lengthy, evidence driven public hearings on the merits of the plan of subdivision. They can be weeks long. They are time consuming and expensive for all parties. Importantly, they are a forward looking, merits-based inquiry. They seek to discover if a plan of subdivision meets the statutory preconditions and is objectively justified. A judicial review serves a very different function. It seeks to discover if a process which has already occurred was done fairly. It is a backward looking, procedure focused inquiry. To preclude access to the former procedure does not necessarily imply an intention to preclude access to the latter, quite different procedure.

[26] Implicit in the Developer’s argument is also the idea that the parties are somehow disadvantaged vis a vis the third parties in that if they are dissatisfied by the decision below, they must appeal while the third parties can go directly to judicial review. Again, this argument of disadvantage is not without controversy. There is a real argument that access to a wholescale reconsideration on the merits is a much more advantageous procedure than a limited reconsideration of a past record. A wholesale reconsideration can be argued to be the Cadillac of appeal mechanisms, and a party with access to it cannot easily cry disadvantage.

[27] It is also not clear that the Developer in this case would be precluded from seeking a judicial review in lieu of their rights to appeal the decision to the Land Tribunal. While appeal rights can circumscribe rights to judicially review, the appeal in this case does not consider the propriety of the decision below. As such there is at least an argument that the Developer is not precluded from bringing a review prior to an appeal.

[28] In sum, Judicial review is a different, simpler and less intrusive process than the full appeal rights to the OLT. The fact that Parliament precluded access to the appeal route for the Applicant does not mean that judicial review is precluded. Further, Yatar holds that even the elimination of appeal rights for certain parties in a statutory scheme does not preclude judicial review. Therefore, it is not plain and obvious that this application for judicial review will be dismissed, and I decline to do so at a preliminary stage. There is at the very least an arguable, justiciable case to the contrary.

[29] I will deal more with the fettering argument later in these reasons.

[30] I will now turn to the County’s position.

2. The position of the County: an actual privative clause

[31] The County acknowledges that in Yatar, the Supreme Court clarified its decision in that where statutory rights of appeal exist, parties could still seek

judicial review, though not on areas where the appeal rights existed. Vavilov had held that statutory appeal rights by themselves are insufficient to bar judicial review.

[32] The County asserts that a legislature can bar judicial review in some instances by for example providing a route of appeal. They cite the Federal Court in Democracy Watch v. Canada (Attorney General), 2024 FCA 158 at 69.

[33] They also assert that the statutory scheme as a whole is a privative clause which prevents judicial review. They cite the combination of s.51(39) of the Planning Act (which restrict the parties who can appeal to the OLT, and s.8(1) of the Ontario Land Tribunal Act (“OLTA”) (which states that the tribunal has exclusive jurisdiction in respect of all matters where jurisdiction is conferred on it by this or any other Act) as amounting to a privative clause which bars third parties from judicial review.

[34] I do not find these arguments to be beyond controversy. As to the first arm of the position of the County, Vavilov essentially found that judicial review could augment restricted statutory appeal rights. It created the clear possibility of concurrent appeal and judicial review proceedings arising from the same administrative decision. The denial of any appeal rights at all does not imply, on that logic, that judicial review is precluded. On one reading it might well imply the contrary.

[35] The second arm, that there is a privative clause created by the legislation, is equally uncompelling. The denial of appeal rights, for reasons expressed earlier, does not clearly imply that such parties cannot seek judicial review. As such the s.51(39) of the Planning Act does not create a privative clause by so doing.

[36] Section 8(1) of the OLTA merely states that the Land Tribunal has exclusive jurisdiction to deal with OLT appeals. Third parties are barred access to this appeal regime. Also, the OLTA does not grant jurisdiction to the OLT to conduct a review of the DPSA decision below. As articulated earlier, the mandate of the OLT is to conduct a wholesale reconsideration of the question of whether the DPSA meets the statutory test and is appropriate. Judicial review performs an entirely different task. It is not affected by a clause saying in effect that all reconsiderations on the merits shall be conducted by the OLT alone. Judicial review is not a reconsideration on the merits.

[37] I also consider that the Supreme Court of Canada in Vavilov specifically did not address the effect or even the constitutionality of privative clauses in purporting to oust the jurisdiction of the Court to entertain judicial review. This fortifies my conclusion that the jurisdictional issue in this case is not sufficiently clear as to merit dismissal at this stage.

[38] Again, it bears repeating that I am not deciding this question on the merits.

I find that the County’s arguments on jurisdiction not to be plain and obvious and as such the matter must be heard on the merits.

D) Standing

[39] Both the Developer and the County assert that the Applicant Philosophers ought not to be granted public interest standing to advance their judicial review. As will be seen, their position does not include a standing objection to the Court hearing the application of fettering.

THE LEGAL TEST

[40] In order to have standing, Philosophers must either satisfy the court that it has a private interest or that it should be granted public interest standing. It does not assert that it has a private interest so the only avenue open to it is public interest standing.

[41] The leading case on public interest standing continues to be the Supreme Court of Canada’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers, 2012 SCC 45 (“Downtown Eastside”), where Justice Cromwell provided the following three factors the courts must assess before granting public interest standing:

a) Whether the Application raises a serious justiciable issue;

b) Whether the Applicant has a genuine interest in the matter; and,

c) Whether the Application is a reasonable and effective means of bringing the case to Court.

[42] It is the burden of the party bringing the judicial review to satisfy the court that it satisfies the Downtown Eastside criteria. An Applicant's reputation, continuing interest, and link to a claim are all relevant factors in determining if the applicant has a genuine interest. Further an Applicants capacity to bring forward a claim including its level of expertise and available resources are also relevant considerations.

[43] The presence of a justiciable issue is not sufficient to satisfy the Downtown Eastside factors by itself. In Rudderham v. Scotian Materials Ltd., 2017 NSSC 330 the Court was asked to determine whether a development officers’ decision to approve an asphalt plant was subject to judicial review. In applying the Downtown Eastside criteria, the Court held that while the issue of the appeal was justiciable, it was not sufficiently serious to grant public interest standing. The case was not a constitutional challenge or a challenge to the validity of legislation. Questions of procedural fairness or the correctness or reasonableness of a certain kind of decision were found not to be serious enough issues to warrant public interest standing even though they were justiciable.

[44] In British Columbia (Attorney General) v. Council of Canadians with Disabilities 2022 SCC 27 the Supreme Court also mandated that in weighing the

above factors the Court must also keep in mind the purposes in granting standing including the efficient allocation of scarce judicial resources, screening out “busybody” litigants, and ensuring the Court has the benefit of views of those most directly affected by the issues.

[45] Quite recently the Ontario Court of Appeal had occasions to review these factors in the light of a community organization seeking to have standing to challenge a development project. In Ontario Place Protectors v. Ontario, 2025 ONCA 183 (“Ontario Place”) the Court of Appeal overturned an earlier decision denying standing to the community organization. Their reasons concerning how to apply the three factors are worth excerpting in detail:

[23] The problem with enumerating criteria is that they often come to be understood as boxes that must be ticked rather than simply relevant considerations. The Supreme Court warned against this approach in Downtown Eastside, at para. 36, emphasizing that the criteria were to be understood as "interrelated considerations to be weighed cumulatively, not individually, and in light of their purposes" - purposes that include not only preserving limited judicial resources but also ensuring that government action can be subject to judicial scrutiny.

[24] The application judge applied two of the three criteria stringently, concluding that the appellant fell short of both the "genuine interest" and the "reasonable and effective means" criteria. She found that there was insufficient evidence in the record to determine whether the appellant has a genuine interest in the matter and that even if it did, the challenge "would better be brought to court by a party that wishes to assert a cause of action that is extinguished by s. 17(2) [of ROPA ]". With respect, each of these conclusions is in error.

[25] First, there is no doubt that the appellant has a genuine interest in the litigation. The bar is not high. A genuine interest is concerned with whether a person "has a real stake in the proceedings or is engaged with the issues

they raise": Downtown Eastside, at para. 43. The appellant is an organization that includes a wide range of citizens and community groups, all of whom are deeply concerned with the Ontario Place redevelopment. If the appellant does not have a genuine interest in challenging the constitutionality of ROPA, it is difficult to see how anyone would. Although the appellant does not have a claim that is affected by the immunity provisions in ROPA, those provisions are integral to the redevelopment of Ontario Place and the appellant clearly has a genuine interest in that redevelopment.

[26] Second, the issue for the application judge was whether the application was a "reasonable and effective means to bring the challenge to court", not whether there was a better means of doing so. The issues raised in this application involve questions of law. Their resolution does not depend on evidence from someone who may be directly affected - someone whose cause of action was extinguished. Public interest standing was designed to liberalize the law, moving away from traditional requirements that limited the grant of standing. The application is a reasonable means of litigating the issues and the appellant's organization is fully capable of addressing the issues raised in the application.

[46] With that background, I will turn to a consideration of these criteria in the case at bar.

First Question: Does the Application Raise a Serious Justiciable Issue?

[47] The County does not contest this point, and the Developer does not strongly oppose this finding. In the result I find that it is not obvious that this criterion is not met.

Second Question: Does the Applicant have a Genuine Interest in the Matter?

[48] The Philosophers Wool Environmental Preserve was formed in 2015 to organize projects designed to preserve and protect flora fauna and rivers. It states that it carries on its environmental protection mandate and represents the concerns of residents living in proximity to the proposed housing development. The organization has been involved in many aspects of the planning process surrounding the proposal. For example, one of its directors Ms. Gerling made multiple presentations about this development and had communication with many elected officials as well. Philosophers has also held several in person community meetings and circulated a petition that has garnered approximately 200 signatures. It has three directors all of whom are active members. It has nine active volunteers and is developed an e-mail list of several hundred supporters and other interested persons.

[49] The County raises the issue that Ms. Gerling does not reside full time in Ontario in fact resides more often in the United States. The Developer raises the argument already canvassed earlier that Philosophers has no interest because the legislature denied them appeal rights to the OLT. I will not address that argument again, I have already given my reasons for not finding it to be dispositive.

[50] I am very mindful of the very recent guidance of the Ontario Court of Appeal in Ontario Place. They ruled that the bar is not high for this criteria and found standing for a relatively similar litigant in similar circumstances. In those circumstances it is not plain and obvious that the first criteria cannot be found in favour of the Applicant.

Third Question: Is the Applicant a reasonable and effective means of bringing the case to Court?

[51] The County raises two arguments in relation to this question.

[52] Firstly, it says that there are other parties who would be more appropriate public interest litigants including the SVCA. I note that in Ontario Place the Court specifically rejected this approach, ruling that the question is not whether the applicant is the perfect litigant, but rather whether they could properly sustain the litigation.

[53] The County’s second argument is that Philosophers in general and Gerling in particular bring no specialized knowledge to the matters in dispute and in particular bring no engineering, land use planning, or legal expertise to the task they also suggest that Philosophers lacks the resources to justify recognizing it as a public interest litigant.

[54] Once again, Ontario Place provides real guidance in this area:

Public interest standing was designed to liberalize the law, moving away from traditional requirements that limited the grant of standing. The application is a reasonable means of litigating the issues and the appellant's organization is fully capable of addressing the issues raised in the application.

[55] On this record the County and the Developer have not met their onus to demonstrate that Philosophers could not be found to be a proper public interest litigant. Philosophers have shown themselves to be energetic in the pursuit of their perspective. They have engaged experienced counsel and I have been provided useful materials on this application. While they had to do some fundraising to sustain their litigation there is no indication that they will be unable to sustain it to the next step. Wealth is not a precondition to standing. An organization does not have to be extensive in order to address the issues raised in the application.

[56] It is true that as an organization, the Applicant does not bring a wealth of specialized knowledge. It must be said that this is true of a significant number of concerned citizens groups. While some organizations bring such credentials, many bone fide citizens groups do not. There was no indication that the Ontario Place Applicants had such expertise. I caution myself that these factors are just examples of relevant factors, not boxes to be checked.

Fourth Question: Is the issue sufficiently serious to warrant the grant of public interest standing?

[57] The County raises the issue that the decision in question is only a decision to permit the lands to be subdivided. They say that the fundamental complaint by philosophers is that the use of the land for residential development has not been demonstrated. They suggest that the decision about the subdivision by itself is sufficiently serious to grant public interest standing.

[58] This application concerns the proper ambit of a relatively large subdivision being installed within a relatively small distance from residences, waterways and a large park.

[59] This is not a situation like in Lowe where complaints about sight lines between neighbors did not raise any serious public issue. While accepting that the County’s argument does not lack all merit, the effect of a relatively large development on numerous local property owners and the environment has the potential to be serious enough that I cannot say that this criteria has been dispositively rebutted by either the County or the Developer.

CONCLUSION ON STANDING

[60] While I have reviewed each of the factors in turn I am also mindful of the Courts guidance, from Ontario Place and other authorities, that I should look at the factors not as merely boxes to be ticked but rather as interrelated considerations

to be weighed cumulatively, not individually, and in light of their purpose. Many of the factors I have considered within the ambit of one of the four questions also have resonance in relation to the other individual questions and the entirety of the decision. Weighing all the considerations cumulatively I am not persuaded that the County or the Developer can demonstrate that it is plain and obvious that Philosophers should be denied public interest standing.

E) Fettering

[61] The Applicant Philosophers Wool have claimed that the Mayor of Kincardine demonstrated that the County committee had fettered its discretion when he said that any modifications to the project were “above his pay grade”. As stated earlier, the objection by the Developer and the County to this ground centers not so much on jurisdiction and standing as on evidence and the legal framework for decisions such as that under review.

[62] As to evidence, they assert that the affidavit of Ms. Gerling is inadmissible, and it seems to be the only evidence of fettering. As it is their position that the affidavit ought to be struck, they say this ground cannot survive the absence of an evidentiary foundation.

[63] Secondly, they assert that even if the affidavit is not struck, it discloses at best that the Mayor of Kincardine at a municipal meeting after the granting of the

DPSA might have said things reflective of fettering. (They say that in context this is not so.) The Mayor does sit on the County of Bruce committee which decided the application. They assert that as the caselaw suggests that as the decision on the DPSA was a legislative rather than an administrative act, in order to show improper fettering, it must be established that the majority of the County committee was fettered.

[64] The first argument I do not find persuasive. For reasons I will develop further in the next portion of this judgment I will leave to the panel whether the evidence is admissible.

[65] The second argument requires me to consider whether it is plain and obvious that the fettering argument could not succeed.

[66] The Mayor of Kincardine is only one committee member. If in a decision, the evidence discloses that one of a few decision makers was exercising his authority improperly, according to an improper understanding of the law, this might be some evidence that the eventual decision was fettered. I am not saying that this is the necessary conclusion or even that it was a strong inference, but it would be something to be left to the actual application.

[67] It is the position of the Developer that the actions of the committee in this case were an action which was made pursuant to a by law and as such was a legislative decision subject to a standard of illegality. They cite Auer v. Auer, 2024

SCC 36 from the Supreme Court of Canada and Guzar v. The Corporation of the Township of Puslinch, (2019), ONSC 3511.

[68] In Guzar there was a review of the decision of a municipal council. One of the allegations was that the council had fettered itself and subdelegated its authority to a vote of a cottager’s association. They also wished to review the decision on reasonableness grounds. Importantly, the municipality conceded in that case that the Court could review the decision on questions of fettering. The Court found that no review as to the reasonableness of that decision could occur because of s.272 of the Municipal Act. They did go on to consider the fettering question on the merits. This decision does not affirm the position of the Developer, it in fact confirms the position of the Applicant Philosophers Wool.

[69] Auer is of little assistance. It deals with a challenge to the Federal Child Support Guidelines where the argument was that the Governor in Counsel exceeded their authority pursuant to the Divorce Act when they enacted the guidelines. The factors cited at paragraph 33 of that decision and cited by the Developer are a long way from closing the issue before me. They involve quite different considerations for a quite different legislative task.

[70] In sum, I do not find that this issue is so clear and unambiguous so as to allow me to find that the Applicant could not succeed. As with the other parts of my

decision supra, I have not decided these matters on their merits, I have only decided the narrow question of their possible merit.

F) Admissibility Of The Gerling Affidavit, In Whole Or In Part

[71] The Gerling Affidavit is in three conceptual categories:

1. Evidence of email communications from interested parties and members of the committee or the counsel;

2. Evidence of the Mayor of Kincardine saying thigs alleged to show fettering; and

3. Two expert reports.

[72] The County and the Developer say that the material is not proper fresh evidence, that it required a motion to have it be admitted as evidence, that it is hearsay and it is irrelevant.

[73] The Applicant says it is evidence of fettering, is not fresh evidence, is there to provide context and was in part before the committee when it made its decision.

[74] Evidence that was not before the decision maker is generally not admissible on judicial review unless if falls within three recognized exceptions:

a. Where the evidence seeks to provide general background information. However, the information cannot consist of evidence that goes to the merits of the matter.

b. Where the affidavit is designed to tell the reviewing court that there was a complete absence of evidence before the tribunal below on a certain subject matter.

c. Evidence that goes to the issue of natural justice, procedural fairness, improper purpose or fraud that could not have been put before the original decision maker.

(Windrift Adventures v. Chief Animal Welfare Inspector, 2023 ONSC 4501 citing Bernard v. Canada (Revenue Canada), 2015 FCA 263.)

[75] This court in 2024 recently confirmed that the correct approach on an interlocutory motion for striking an affidavit is as follows: where there is material in the affidavits that is clearly inadmissible it should be struck. Where there is doubt concerning the admissibility of affidavit material it should not be struck and should be left to the application panel.

[76] This approach is justified because defining the record appropriately in advance of the hearing enhances the panels’ ability to determine the merits and thus is in the interests of justice. (Joe Singer Shoes v. A.B., 2018 ONSC 5869).

[77] This deference to the role of the panel in determining the merits of the application on the evidence was clearly shown in Rockcliffe Park Residents Association v. Ottawa (City), 2024 OJ No. 2156 at paras 31-33. In that case the Court endorsed the approach that the motion Judge must be careful not to usurp

the role of the panel in determining the merits of the application. Where there is doubt concerning the admissibility of affidavit material it should not be struck.

[78] Acting on these legal principles I find that the some of the material introduced in the affidavit can be considered by the panel. I will consider the categories of evidence one after the other.

[79] The correspondence back and forth is simple, easy to consider, and possibly probative of issues to be decided by the panel. It may qualify for the exception of background. It may be relevant to procedural fairness. It is not clearly irrelevant. It is best considered along with the main argument of the Applicant.

[80] The video evidence of the Mayor making comments which are alleged to demonstrate fettering are also admissible. The merits of whether they constitute fettering by him, and the further question as to whether fettering by him (if found) would taint the final decision, are not fundamentally for me to consider. They could be merit to these arguments depending on which legal test the committee decides to adopt and the view they take as to the context of the remarks.

[81] Again, the evidence is not complex or lengthy. It clearly has the potential to be admitted under the third exception relating to natural justice and procedural fairness. It was not available at the time of the original hearing because it had not been said. It is admissible about that hearing because it could be seen as a kind of admission about a flaw in the reasoning process by one of the decision makers.

[82] The two expert reports are the most problematic as to their admissibility.

They were not put before the committee and there is no real evidence why they were not. One had been prepared prior to the decision and there is no evidence as to why the second was only prepared after it. There were already substantial reports tendered on environmental issues. A judicial review is not a hearing de novo, it is a review on the record. There is no route to admissibility which has been established in relation to the expert reports, and I rule them to be inadmissible.

[83] My rulings on the evidence I have allowed to go to the Panel, and my rulings on jurisdiction and standing, are made without prejudice to the parties making contrary argument to the panel who will hear this appeal.

G) Conclusion

[84] For the reasons above the application by the Developer, supported by the County is dismissed in large part. The application to strike the expert reports is granted. The matter will be heard by a full panel at a date to be fixed.

[85] There was no time to hear any significant submissions as to costs. I will allow the parties to file not more than one page of argument each on the quantum and propriety of a costs order. The Applicant shall file his page not later than two weeks from the release of these reasons. The Respondent County and the Intervenor shall have one week from the receipt of the Applicants material to file.

The one-page limit is for arguments not for a bill of costs which can be a number of pages as necessary.

Derstine, J.

Released: May 12, 2025

CITATION.: The Philosopher’s Wool Environmental Preserve v. The County of Bruce, 2025 ONSC 3117 COURT FILE NO.: DC-24-00000030-0000

DATE.: 2025-05-12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

The Philosopher’s Wool Environmental Preserve

Applicant

• and -

The County of Bruce

Respondent

• and -

JHT2INV Development Inc

added party intervenor (Moving Party)

ENDORSEMENT

Derstine, J.

Released: May 12, 2025