CITATION: New Sunlight Inc. v. Minister of Infrastructure, 2025 ONSC 7162

DIVISIONAL COURT FILE NO.: 793/24 JR

DATE: 20251222

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: NEW SUNLIGHT INC., Moving Party

AND:

HIS MAJESTY THE KING IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF INFRASTRUCTURE, Responding Party

BEFORE: Justice O’Brien

COUNSEL: Douglas O. Smith and Alyson Sutton, Counsel for the Moving Party

Andi Jim and Matthew Chung, Counsel for the Responding Party

Sam Rogers and Dan Poliwoda-Rabinovici, Counsel for the Proposed Witness (Responding Party)

HEARD: December 16, 2025

ENDORSEMENT

Overview

[1] The applicant has brought an application for judicial review challenging the Ministry of Infrastructure’s plan to expropriate its two properties for several public infrastructure projects. The current application challenges two notices of application for approval to expropriate (NOAs), one in relation to each parcel of land. The applicant previously sought review of two Orders in Council relating to the expropriations. That application was dismissed in this court (New Sunlight Inc. v Ontario (Minister of Infrastructure), 2025 ONSC 638). Leave to appeal that decision has been granted by the Court of Appeal.

[2] The motion before me seeks an order to compel the examination of Joyce Ho, a Vice-President at Infrastructure Ontario, under r. 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The applicant submits it should be entitled to examine Ms. Ho to obtain “further disclosure of relevant facts and considerations that were presented to the decision maker and formed the basis for the decision to expropriate the Applicant’s lands.”

[3] In seeking this relief, the applicant focuses specifically on its allegation that the NOAs were illegal/ultra vires, and/or made in bad faith and/or for collateral purposes. The applicant alleges that the infrastructure projects do not require Ontario to expropriate all of its right, title and interest to the affected properties. The record of decision produced by Ontario includes a briefing deck prepared by Ms. Ho. The briefing deck refers to a “revenue generating opportunity” that the applicant alleges is relevant to its allegations that the NOAs were made in bad faith and/or for a collateral purpose.

[4] For the following reasons, the motion is dismissed.

Legal Principles

[5] Rule 39.03 permits a person to be “examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.”

[6] There is a prima facie right to conduct an examination under r. 39.03, but that right is subject to certain limits as set out in Payne v. Ontario Human Rights Commission, 2001 5731 (ONCA), at para. 164. The relevant limits for the purposes of this motion are: (1) There is no right to examinations for discovery in judicial review proceedings; and (2) The party seeking the examination must present “some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed”: Payne, at paras. 165, 172.

[7] The “onus is on the party seeking to conduct the examination to show a reasonable evidentiary basis that the examination would be conducted on issues relevant to the pending application and that the proposed witness was in a position to offer relevant evidence”: Bokhari v. Top Medical Transportation Services, 2025 ONSC 1208, at para. 25; Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), 2002 41606 (ON CA), 211 D.L.R. (4th) 741 (Ont. C.A.), at para. 30.

[8] If the party seeking the examination cannot satisfy the relevancy and evidentiary screening, then the summons is regarded as a “fishing expedition and an abuse of process” and not permitted: Bokhari, at para. 26; Airport Taxicab (Pearson Airport) Association v. Toronto (City), 2009 25973, at para. 28.

Application of Principles to this Case

[9] I am not satisfied the applicant has shown a reasonable evidentiary basis to support the examination.

[10] The record on judicial review is limited to the material that was before the decision maker, with limited exceptions. The applicant sought to examine Ms. Ho because she prepared the briefing deck, entitled: “Briefing to Ministry of Infrastructure.” The title page also included the following: “Presented by: Joyce Ho, Vice President, Development, Date: November 12, 2024.” The applicant took it from the briefing deck that Ms. Ho had briefed the Minister as part of the process of reaching the decision regarding the NOAs.

[11] However, Ms. Ho has now filed an affidavit in which she advises that she did not brief the Minister or any Ministry of Infrastructure staff regarding the briefing deck, the NOAs, or any other document found in the record of decision.

[12] Since there is no reasonable evidentiary basis that Ms. Ho participated in briefing the Minister or any Ministry staff leading to the decision to issue the NOAs, the next question is whether there is a basis to order the examination for the purpose of evidence that would be permitted to supplement the record on judicial review.

[13] Evidence that was not before the decision maker may be permitted on an application for judicial review where it (1) sets out general background that would assist the court; (2) shows procedural defects that are not apparent from the record or reasons; or (3) shows a complete lack of evidence to support a material finding of fact: Rockcliffe Park Residents Association v. City of Ottawa, 2024 ONSC 2690at para. 35.

[14] The proposed examination does not seek evidence falling within these exceptions. The applicant describes the scope of the proposed examination as focusing on (1) the proposed scope of the Ministry’s expropriations; (2) the rationale for the proposed expropriations; (3) the scheme for which the Ministry has proposed to expropriate; and (4) the timelines set out in the record of decision.

[15] Starting with the first exception, these topics do not constitute general background information. The general background is already found in the briefing deck. The topics are better characterized as an attempt to obtain more detail and information about the reasons and plan for the expropriation – that is, the merits of the decision. Examination on these topics would be more akin to an examination for discovery on the specified topics than an attempt to provide general background information.

[16] The topics the applicant seeks to cover also are not aimed at the second basis a party may be permitted to supplement the record -- demonstrating a procedural defect. The only procedural issue the applicant has raised is the absence of reasons for the Minister’s decision. The applicant has not directly characterized this as a procedural defect. Certain types of administrative decisions, like this one, are not made with a single set of reasons: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 137. Where that happens, the reasons are gleaned from the record as a whole. The absence of reasons does not amount to a procedural defect.

[17] To the extent the applicant’s point is it should be entitled to a better record of the reasons for decision, as set out above, Ms. Ho would not be in a position to supplement the reasons that can be discerned from the record. She herself was not the decision-maker and did not meet with the Minister about the decision. She also did not directly recommend a course of action to the Minister. Although her briefing deck could be said to assume the expropriations would proceed, it did not contain an explicit recommendation. A separate document that Ms. Ho did not author, entitled “decision note” set out the decision that was sought and the recommendation for initiating the expropriation process.

[18] Finally, the examination is not needed to show the third possible basis for supplementing a record on judicial review, that is, a complete lack of evidence on a material finding of fact. Instead, all the topics the applicant seeks to cover in the examination are dealt with in the record of decision as follows:

[19] The proposed scope of the expropriation: The record of decision provides diagrams and other information showing the proposed scope of the expropriation.

[20] The rationale for the expropriation: The rationale is partly addressed in the decision note found in the record of decision. The decision note is a memorandum to the Minister. It says the province is seeking to expropriate under a single expropriation scheme to “assist the government in avoiding overcompensating landowners.” Ms. Ho’s briefing deck sets out the objectives of the expropriation as being to seek a full-site expropriation to reduce acquisition costs, secure project delivery timelines, maintain leverage in negotiations, and preserve opportunities for transit-oriented development.

[21] The expropriation scheme: As set out above, the decision note identifies the scheme as a single expropriation. Both the briefing deck and the decision note provide for full and partial expropriation options, with flexibility to adjust based on negotiations.

[22] Timelines: Timelines for various steps in the expropriation process are set out in the briefing deck. Many of the timelines may now be out of date, but that does not lead to a finding that there is a complete absence of evidence on the point.

[23] In short, there is evidence on every topic the applicant has raised. There is no entitlement to supplement the record on these topics. To allow the applicant to examine on these issues would be akin to a limited right of discovery.

[24] The applicant has pointed to two cases it says support its entitlement to examine Ms. Ho: Payne and Rockcliffe Park. In both of those cases, a limited right of examination was permitted.

[25] The case before me is unlike Payne. The appellant in Payne had complained to the Ontario Human Rights Commission alleging discrimination by her employer on the basis of race. Commission staff investigated the complaint. A report of the investigation recommended that the Commission refer the complaint to a board of inquiry. However, after considering the matter at three meetings, the Commission decided not to request the appointment of a board of inquiry. This meant, in effect, the complaint was dismissed.

[26] The Court of Appeal allowed the examination of a person who was “privy to the decision-making process” at the Commission. The Court of Appeal was of the view that the appellant was entitled to know the recommendations and any other facts presented to the commissioners by Commission staff.

[27] There are two key differences in that case. First, the appellant sought to examine a person who was privy to the decision-making process. There is no evidentiary basis in the current case to believe Ms. Ho had any information about the decision-making process other than the briefing deck that already appears in the record of decision. Second, in Payne, there was an evidentiary basis for a concern about procedural unfairness. The appellant had filed an affidavit by a former commissioner who raised concerns about excessive control by staff over the decision-making process. The affiant provided evidence about senior staff relying on information not contained in the Commission package. The concerns were particularly relevant to the case because the Commission decision did not follow the initial investigation report. The applicant does not raise any procedural fairness concerns in this case.

[28] Rockcliffe Park is also distinguishable. That case involved the approval of a heritage permit for the construction of a new building. The court permitted a limited examination of a city planner who prepared the staff report that went to the relevant committee and to city council. There, again, the applicant had provided a basis for the concern that their right to procedural fairness had been violated. They also articulated a concern that the decision was made in part on a basis for which there was a complete absence of evidence. The proposed affiant in that case also prepared the recommendation that went to city council. In this case, although Ms. Ho prepared the briefing deck, the official recommendation to the Minister is found in the decision note, which she did not prepare.

[29] I am not persuaded these cases support the applicant’s entitlement to the examination of Ms. Ho in the circumstances of this case.

[30] The applicant finally submits two contextual factors weigh in favour of ordering the examination. These are that (1) expropriation is a severe governmental interference with a citizen’s private property rights; and (2) the applicant is not entitled to a hearing of necessity, as it would have bene under the Expropriations Act, R.S.O. 1990, c. E. 26 if the land at issue had not been designated as a transit-oriented community. A hearing of necessity is the usual route to challenge expropriation. I appreciate that these factors provide important context. However, I cannot conclude they justify changing the limits to the record on judicial review.

[31] Overall, the applicant has not provided a foundation to justify supplementing the record. The proposed examination would not cover material that was before the decision-maker, reflects the decision-maker’s decision, or that would demonstrate one of the limited exceptions that permit supplementing the record.

Disposition

[32] The motion is dismissed. As agreed by the parties, the applicant shall pay $5,000 to each of Infrastructure Ontario and the Ministry.

[33] Given that no further steps will be taken with respect to the record on this application, the next step is for the parties to file their factums. By January 16, 2026, the parties are asked to provide a proposed a schedule for the exchange of factums to my attention through the case management process.

O’Brien J.

Released: December 22, 2025