Innisfil Township v. Vespra Township, 1981 CanLII 59 (SCC), [1981] 2 SCR 145

Supreme Court of Canada

Innisfil Township v. Vespra Township, 1981 CanLII 59 (SCC), [1981] 2 SCR 145

Date: 1981-05-28

The Corporation of the Township of Innisfil Appellant;

and

The Corporation of the Township of Vespra, the Corporation of the Township of Oro, the Corporation of the County of Simcoe, and the Corporation of the City of Barrie Respondents;

and

South Simcoe Estates, Seven Acorns Investments Ltd., Heritage Glen North and Heritage Glen West, and Paramount Development Corporation (Respondents added by Order of the Divisional Court).

1980: June 10; 1981: May 28.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Courts—Independent tribunal—Municipal annexation hearing—Letter indicating government policy filed—Cross-examination on letter denied and evidence and argument on issue limited—Whether or not Board erred in denying opportunity to cross-examine government representative—Whether or not Board erred in limiting scope of evidence and argument on issue—Whether or not Board denied natural justice by allegedly relying on previous annexation hearing—The Municipal Act, R.S.O. 1970, c. 284, s. 14—The Ontario Municipal Board Act, R.S.O. 1970, c. 323, ss. 94, 95(3)—The Statutory Powers Procedure Act, 1971 (Ont.), c. 47, ss. 3, 10, 15, 16, 23—The Judicature Act, R.S.O. 1970, c. 228, s. 17—The Ministry of Treasury, Economics and Intergovernmental Affairs Act, 1972, 1972 (Ont.), c. 3, s. 4.

These proceedings began with an application by the City of Barrie to annex parts of the Townships of Innisfil, Oro and Vespra. At a hearing of the Ontario Municipal Board, the projected population of Barrie in 2011 assumed importance. While evidence was being led by Innisfil on the issue, the Minister forwarded a letter, through a departmental representative, to the Board advising it of the population allocations in a planning

[Page 146]

study prepared for the region. The Board ruled that it was bound by government policy as communicated in the letter and would not permit cross-examination on the letter. Following judicial review, however, letters and reports inconsistent with the government letter could be filed but without explanation. The Board issued its annexation order on the basis of the government’s population figures.

The Divisional Court, on appeal, found that the Board had denied Innisfil natural justice and had therefore acted beyond its jurisdiction. The Court of Appeal reversed the Divisional Court, but agreed that the Board had committed an error of law, albeit within its jurisdiction, by refusing to hear evidence of forecast population before giving the Minister’s letter preponderant weight. Innisfil appealed.

Held: The appeal should be allowed.

The statutes considered combined to establish a clear code of rights in the parties and in the Board which required the opportunity in the objector-appellant to meet by cross‑examination the case being put against appellant’s position. This was so whether the proceeding could or could not be classified as a “lis” and whether the Board’s function upon completion of the hearing and in disposing of the application fitted into any of the traditional descriptions of a tribunal’s functions.

The Board erred when it refused to accord the appellant an opportunity to cross‑examine a representative of the Minister on the letter. It was not for the appellate court to withhold the right to cross-examination because in its judgment it was doubtful, or even impossible, in the court’s view, for the appellant to advance its case by such cross‑examination. The decision to exercise the right was solely that of the holder of the right.

The relationship of “independent” agencies to the executive branch of government, in so far as that relationship affected the procedural rights of the parties before the tribunal, could only be determined by reference to the agency’s parent statute, and other relevant statutes or common law prescribing procedural norms. It was not for the Court to go behind the ground rules or modify them because of perceived far-reaching effects. If on its face an agency were held out to be “independent” of the executive, it remained that way for all purposes until the Legislature altered the position and procedure of the agency. A court would require the clearest statutory direction to enable the executive

[Page 147]

branch to give binding policy directions to an administrative tribunal and to make such directions immune from cross-examination. Even though the role assigned the Board in the legislation as drafted could entail some conflict between the administrative result and certain government policies, the remedy did not lie in the Board and Court denying the citizen his statutory right to oppose annexation.

The Court did not err in failing to hold that the Board’s reliance on the evidence from a previous annexation hearing was a denial of natural justice. The Board did not base its decision relating to the “vacancy factor” upon the recollection of a past decision but rather on the bases of general principles which it had accepted in previous cases and on the evidence which had been presented to it. Its previous experience in Barrie was not used as a compelling precedent but only as an example.

Conway v. Rimmer, [1968] A.C. 910; Broome v. Broome, [1955] P. 190; Cooper v. Wandsworth Board of Works (1863), 14 C.B. (n.s.) 180; The Board of Education v. Rice, [1911] A.C. 179; Wilson v. Esquimalt and Nanaimo Railway Company, [1922] A.C. 202; B. Johnson & Co. (Builders), Ltd. v. Minister of Health, [1947] 2 All E.R. 395; Ridge v. Baldwin, [1964] A.C. 40; Re H.K., [1967] 2 Q.B. 617; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 24 (SCC), [1979] 1 S.C.R. 311; R. v. Gaming Board for Great Britain, Ex parte Benaim and Khaida, [1970] 2 Q.B. 417; Wiseman v. Borneman, [1971] A.C. 297, referred to.

APPEAL from a decision of the Court of Appeal for Ontario¹, allowing an appeal from a judgment of the Divisional Court certifying its opinion to the Ontario Municipal Board that that Board had denied natural justice and thereby acted beyond its jurisdiction. Appeal allowed.

John Sopinka, Q.C., and Robert Rueter, for the appellant.

James McCallum, Q.C., and Leo Longo, for the respondent the Corporation of the City of Barrie.

R.K. Wabb, Q.C., for the respondent South Simcoe Estates.

[Page 148]

J.S. Stewart, Q.C., for the respondent Paramount Development Corporation.

Blenus Wright, Q.C., and Elizabeth Goldberg, for the intervener the Attorney General of Ontario.

The judgment of the Court was delivered by

ESTEY J.—These proceedings began with an application by the respondent, the Corporation of the City of Barrie (“Barrie”), to annex parts of the appellant Corporation of the Township of Innisfil (“Innisfil”) and the respondent Corporations of the Townships of Oro and Vespra pursuant to The Municipal Act, R.S.O. 1970, c. 284, s. 14. The respondent Corporation of the County of Simcoe (“the County”) opposed this application along with the Townships already mentioned. The other respondents are landowners and developers in the area affected by the application and were joined as respondents in the Divisional Court on the hearing of the appeal from The Ontario Municipal Board (“the Board”).

The Attorney General of Ontario intervened in both the Court of Appeal and this Court. While some twenty-two parties were represented by over thirty counsel before the Board, in this Court the protagonists were reduced to five, being Innisfil, Barrie, the Attorney General of Ontario, South Simcoe Estates and Paramount Development Corporation. The latter two respondents, by notices to vary, sought in effect to cross-appeal from the decision of the Court of Appeal.

The fulcrum of the debate on the annexation application turned out to be the forecast of the population in the region in question in the year 2011. The Board in its reasons accepted the evidence of the opponents to annexation and concluded that the population of Barrie by the year 2011 would be unlikely to exceed 75,000 if one simply took the present population and projected it on a favourable basis. The reasons of the Board are

[Page 149]

reported sub nom Re Barrie Annexation². In doing so, the Board rejected the evidence of Barrie that the population at that time would be 125,000 by the process of natural increase. After Barrie had completed the presentation of its application, after the County had completed its response, and after Innisfil had commenced to lead its evidence on this issue, the Minister of Treasury, Economics and Intergovernmental Affairs (“the Minister”) forwarded to the Board a letter advising the Board that “the population allocations” in a planning study prepared for the region and “approved by the government” provided for a population in Barrie at the date in question of 125,000 persons. The Minister’s letter was presented by a departmental representative who apparently was thereby made available through the Board for cross‑examination. The Minister’s letter revealed that other letters had been sent by the Minister to the Board and these were made part of the record at the same time.

The Board, after an adjournment to afford the parties an opportunity to present argument on the issue, ruled:

a) The Board was bound by the government policy as communicated in the letter, and in the annexation process land sufficient to accommodate a population of 125,000 must be included;

b) No cross-examination on the letter would be permitted;

c) No evidence could be led by the parties to contest the government policy.

From this ruling the County and the Townships applied for judicial review to the Divisional Court of the Supreme Court of Ontario which unanimously concluded that the Board was not bound by the population projection in the Minister’s letter but the Board, by concluding that it was bound, had committed no jurisdictional error (at (1977), 1977 1179 (ON SC), 80 D.L.R. (3d) 85). Leave to appeal from the Divisional Court was denied by the Court of Appeal.

[Page 150]

On their return to the Board, the objector Townships sought and were denied permission to cross-examine the Minister’s representative. The Board again ruled that the parties, in responding to the annexation application, could neither cross-examine the Minister’s representative on the letter and its policy contents, nor could the parties call evidence on the issue of population in the year 2011. As to evidence relating to other government policies which might be inconsistent with that expressed by the Minister in his letter, the Board allowed counsel for Innisfil to file certain government letters and reports, but refused any evidence explaining the manner in which and the time when the documents were prepared.

Thereupon the hearings were concluded and the Board issued an annexation order on the basis of the population in Barrie in the year 2011 being 125,000 persons, although in its judgment the Board stated that in its opinion the population of Barrie in the year in question by natural increase would be only 75,000 persons.

Innisfil took the matter once again to the Divisional Court this time obtaining leave to appeal on the following issues:

(a) Was the Board correct in law in deciding it was bound because of the letter of the Minister to provide for sufficient land in the annexation to accommodate 125,000 people; and in denying Innisfil the opportunity to cross-examine on the letter or to lead evidence to the contrary; and

(b) Did the Board determine the amount of land to be annexed by Barrie without any basis for such determination in the evidence?

The majority of the Divisional Court allowed the appeal and certified its opinion to the Board that the Board had denied Innisfil natural justice in both instances and thereby had acted beyond its juridiction on both issues. Craig J. in dissent concluded that the Board was correct in accepting the ministerial direction as to the future population of the area and therefore the Board properly denied an attack on that policy by Innisfil either by the

[Page 151]

leading of evidence or by cross-examination. This second Divisional Court judgment is reported at (1978), 7 0.M.B.R. 233.

The Court of Appeal granted leave to appeal to Barrie and by a majority reversed the Divisional Court on both issues (at (1978), 1978 57 (ON CA), 95 D.L.R. (3d) 298). Blair J.A. dissented with respect to the Board’s refusal to permit cross-examination on the government policy statements regarding population estimates. The whole Court agreed, though, that the Board had committed an error of law, albeit within its jurisdiction, by refusing to hear evidence of forecast population before giving the Minister’s letter preponderant weight.

Lacourcière J.A., writing for the majority, concluded that on the first portion of the first question put on the appeal from the Board, the refusal to permit cross-examination on the Minister’s letter, and specifically on the government policy in the forecast population for the Barrie area, was not an error of law and “did not amount to a denial of a full hearing under s. 14.” This refers to the statutory directive to the Board in annexation proceedings found in s. 14 of The Municipal Act, supra, the principal ground for this conclusion, at p. 311, was that:

[T]he Board’s ultimate decision has an administrative—almost a legislative—component, wherein the Board has to weigh the merits of the application, after considering all the relevant facts proven in the light of the objections presented and bearing in mind not only the local area but the general public interest, that of the population of the entire Province. That aspect of the decision is administrative in nature and is guided by the Board’s broad view of the policy which it must implement.

Lacourcière J.A. continued later on the same page:

[Page 152]

…specific Government policy, such as the Barrie area population, constitutes a political policy decision, for which the Government is answerable to the electorate. In my view, provided such policy is not inconsistent with statutory objectives in the broad area of planning, an administrative board may conclude that it must be accepted having regard to all relevant facts and after listening to the objections raised, and cannot properly fall within the scope of judicial review scrutiny.

It is clear that Lacourcière J.A. had reconciled the government’s communication of its policy to the Board on the one hand and the Board’s duty to determine the annexation issues on the other, and held that this could be done without cross-examination of the government representative on the Minister’s letter. In the result, the majority found that the Board must hear any submissions the opponents to the annexation might wish to make on the letter and its contents but not cross-examination thereon, and its refusal to permit cross-examination did not bring about a loss of jurisdiction in the Board.

On this issue Blair J.A. dissented, stating at p. 318 that:

…the Board erred in refusing to permit the opponents of annexation to examine witnesses from the Ministry responsible for the formulation of the Government’s policy on population allocation to Barrie.

In doing so, he differentiated, as did the Divisional Court, between unreviewable administrative decisions of the Board and reviewable decisions made by the Board in the course of a hearing held pursuant to s. 14 of The Municipal Act, supra. This error found in the Board by the dissent was the denial of the opportunity to cross-examine and to lead evidence on the policy issues raised by the Minister’s letter. Blair J.A. concluded that this error amounted to a violation of the principle of audi alteram partem. Since the Board must determine the weight to be given to the Minister’s submissions as contained in the letter, the consideration of the opposing parties’ evidence and submissions was a prerequisite to that decision.

[Page 153]

Any difficulty as to secret or confidential government information being prejudiced by the cross-examination of the departmental representative could be disposed of by the Board within the ordinary principles of the law of evidence.

The second portion of the first issue concerned the refusal of the Board to permit the opponents of the annexation plan to call evidence concerning the statements of government policy contained in the letter. In concluding that such a rejection by the Board was an error, Lacourcière J.A. stated at p. 313:

The evidence tendered by counsel for the objectors in the present case was directed to proving that there were conflicting Government policies to be considered and that, in any event, implementation of the population policy was not possible. While counsel for the objectors would face a formidable task in proving that implementation of the population policy was impossible, having regard to the Government’s stated intention to induce growth, I do not think that he should have been denied an opportunity to attempt it.

In doing so, the Court of Appeal (on this issue unanimously) followed the majority of the Divisional Court, although it noted at p. 306 that on a statutory appeal under s. 95(3) of The Ontario Municipal Board Act, R.S.O. 1970, c. 323, the Divisional Court could only “certify its opinion”, and not purport to declare the Board’s proceedings a nullity.

On the second issue, which arises from the submission that the Board in its order determined the amount of land to be annexed to Barrie without having any evidence before it on the question, the Court of Appeal unanimously reached the same conclusion [at p. 314] as did the dissent by Craig J. in the Divisional Court, namely that:

There was evidence before the Board—which the learned dissenting Judge reviewed—and its weight could not be subject to review on the limited appeal provided by s. 95 of The Ontario Municipal Board Act.

This argument revolves around the use of a “vacancy factor” amongst other elements in cal-

[Page 154]

culating the amount of land required to accommodate a given population in the region. The Board makes reference in its award to ratios used and evidence given in other cases it has heard, and the Court of Appeal found that the Board had not, in reality, based its decision upon such information but rather upon the principles illustrated by such cases. Hence, on this issue the Court of Appeal unanimously found no error in the Board.

Houlden J.A. agreed with Lacourcière J.A. in the result but in concurring recorded his view that the principle of res judicata may have operated to settle both branches of the first issue mentioned above. This may be so, as Houlden J.A. observes, by reason of the earlier judicial review proceeding before the Divisional Court (mentioned at the outset) where Robins J., for a unanimous Court, decided that the Board did not lose jurisdiction when it decided it was bound by the government policy enunciated in the Minister’s letter, when in law it was not so bound. On the second occasion in the Divisional Court (this time on appeal) the same issue was raised although this time as a question of law, not jurisdiction. None of the parties argued the issue of res judicata in the Divisional Court or the Court of Appeal and Houlden J.A., quite correctly in my respectful view, observes that the first decision of the Divisional Court sitting in judicial review “is capable of being res judicata of the question determined by it”. It should be observed in passing that Lacourcière J.A., in dealing with the hearing of evidence on government policy, expressly disagreed with the conclusion of Robins J. in the Divisional Court that the Board need not receive it. In this Court no argument was advanced on the issue of res judicata and therefore that principle will not be discussed in disposing of the two issues listed above.

But the matter did not end there in the Court of Appeal. When the parties proceeded to take out the formal order in the Court of Appeal, differ-

[Page 155]

ences arose as to the precise disposition made by the Court of the question of hearing evidence from the opponents to the annexation plan on the matters raised in the Minister’s letter. A further hearing was held in the Court of Appeal and the order was there settled as follows:

(5) AND THIS COURT DID CERTIFY to the Ontario Municipal Board that this Court was of opinion that the Ontario Municipal Board

(a) did not commit an error of law by refusing to permit cross-examination on the statement of policy of the Government of Ontario;

(b) did not commit an error of law in determining the amount of industrial land required to be annexed;

(c) did commit an error of law within its jurisdiction in refusing to hear evidence and argument on the statement of Government policy with respect to future population in the Barrie area before deciding whether it should be bound by such policy.

(6) AND THIS COURT DID FURTHER ORDER that this matter be returned to the Ontario Municipal Board to be dealt with in accordance with the opinions above set out.

The final result of the proceeding in the Court of Appeal can be seen in its simplest terms by contrasting this order with paragraph (5) of the Divisional Court order which reads as follows:

(5) AND THIS COURT DID CERTIFY unto the Ontario Municipal Board that this Court was of opinion that the Ontario Municipal Board failed to give a proper hearing to the objectors as required by Section 14(4) of The Municipal Act, R.S.O. 1970, C. 284, that the condition precedent to the exercise of the Ontario Municipal Board’s jurisdiction herein was thereby lacking and that as a consequence of the Ontario Municipal Board’s decision of the 5th day of October, 1977, was a nullity;

By its notice of appeal to this Court, the appellant raises three issues:

1. The majority of the Court of Appeal erred in holding that the Ontario Municipal Board did not err in refusing cross-examination on statements of government policy.

[Page 156]

2. The Court of Appeal erred in failing to hold that the Board’s reliance on the evidence from a previous annexation hearing was a denial of natural justice.

3. The Court of Appeal erred in limiting the scope of evidence and argument that can be presented to the Board by virtue of paragraph 5(c) of its Order.

The respondent Paramount Development Corporation filed a notice to vary which was abandoned before hearing.

The respondent, South Simcoe Estates, filed a notice to vary on two grounds. By its factum in this Court, South Simcoe abandoned ground number 1 but did not abandon ground number 2 in which it is submitted that the Court of Appeal erred in not applying the doctrine of res judicata to the question of whether the Board was entitled to consider itself bound by the policy statement in the letter without hearing evidence or argument by the objectors. In its factum filed in this Court, this ground of appeal was maintained and in its factum submissions are made that the issue is res judicata by reason of the judgment of the Divisional Court (Robins J.) on the judicial review proceedings in that Court. However, in the order requested, the respondent, South Simcoe Estates

…requests an order from this Court:

a) i) dismissing the appeal;

ii) certifying this Court’s opinion that the Ontario Municipal Board did not err in refusing to permit cross-examination on the statement of policy of the Government of Ontario.

As the order requested is inconsistent with its argument with respect to res judicata, I must take it that that ground in the notice to vary has likewise been abandoned by this respondent.

I turn first to the question of the right of the appellant to cross-examine the departmental representative on the letter transmitted to the Board by the Minister, the provincial Treasurer. It will afford a better appreciation of the issue to set out the relevant parts of this letter.

[Page 157]

I refer to my previous letter regarding the matter of the City of Barrie’s application to annex part of the neighbouring townships. At that time, I indicated that the report of the Simcoe-Georgian Task Force had been accepted in principle by the Government.

I understand from my staff, who are attending the hearings, that the Board is uncertain about the degree to which the Government has accepted the report as Government policy, in view of the statement that it has been accepted ‘in principle’. I confirm that, in particular, the population allocations contained in the report have been approved by the Government. In the case of the Barrie Urban Area, this is 125,000.

I understand that my previous letters have not been placed in the record and that the Board would prefer that a witness be available to present such letters and to testify.

In this regard, I have instructed Mr. E.M. Fleming to deliver this letter.

The appellant makes three basic submissions in support of its plea for the right to cross‑examination:

(a) By s. 14 of The Municipal Act, supra, the Board is obliged to afford a full hearing of all objections to the proposed annexation and the denial of cross-examination reduces the character of the hearing below the prescribed statutory level.

(b) The refusal is a denial of natural justice in that in consequence the appellant is unable to meet and controvert that which is put against it.

(c) The decision of the Court of Appeal that the Board is not bound by the government policy enunciated in the letter, and that the appellant may challenge such policy by adducing evidence, are inconsistent with the denial by the Court of a right in the appellant to cross‑examine the witness made available by the Minister on this policy.

The respondent’s case may be simply put this way: in the circumstances of the case and the statutory pattern here relevant, the refusal to permit cross-examination is not a denial of natural

[Page 158]

justice, particularly so because there is no lis inter partes.

These proceedings began with an application by the respondent Barrie to the Ontario Municipal Board for an order for the annexation of certain areas of the appellant and some of the respondent municipalities, pursuant to s. 14(2) of The Municipal Act, supra. Under subsection (4) of that section the Board is directed to hold a hearing as follows:

(4) The Municipal Board, before making any order under subsection 2, shall hold a public hearing, after such notice thereof has been given as the Board may direct, for the purpose of inquiring into the merits of the application and of hearing any objections that any person may desire to bring to the attention of the Board.

From any order issued by the Board thereunder an appeal lies to the Divisional Court on leave of that Court (and therefrom on leave to the Court of Appeal) “upon a question of jurisdiction or upon any question of law” pursuant to s. 95(1) of The Ontario Municipal Board Act, supra, and The Judicature Act, R.S.O. 1970, c. 228, s. 17, which adds the Divisional Court to the appellate structure. The overriding importance and effect of s. 14 is underlined by subs. (18) thereof which provides:

(18) The powers conferred upon the Municipal Board by this section may be exercised at any time or times notwithstanding any other provision in this Act or any other special or general Act and, in the event of any conflict between the provisions of this section and the other provisions of this Act or any other special or general Act, the provisions of this section prevail.

The conduct of hearings by administrative tribunals is the subject of The Statutory Powers Procedure Act, 1971, 1971 (Ont.), c. 47. The relevant provisions for the purposes of this appeal are as follows:

3. (1) Subject to subsection 2, this Part applies to proceedings by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the

[Page 159]

parties to the proceedings an opportunity for a hearing before making a decision.

10. A party to proceedings may at a hearing,

(a) be represented by counsel or an agent;

(b) call and examine witnesses and present his arguments and submissions;

(c) conduct cross-examinations of witnesses at a hearing reasonably required for a full and fair disclosure of the facts in relation to which they have given evidence.

15. (1) Subject to subsections 2 and 3, a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject matter of the proceedings and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

(2) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or

(b) that is inadmissible by the statute under which the proceedings arise or any other statute.

16. A tribunal may, in making its decision in any proceedings,

(a) take notice of facts that may be judicially noticed; and

(b) take notice of any generally recognized scientific or technical facts, information, or opinions within its scientific or specialized knowledge.

23. …

(2) A tribunal may reasonably limit further cross-examination of a witness where it is satisfied that the cross-examination of the witness has been sufficient to disclose fully and fairly the facts in relation to which he has given evidence.

Reference will be made to these statutory provisions later.

The letter in issue was, as earlier described, tendered by the provincial Treasurer through his

[Page 160]

representative in the course of the Board hearings. The Board immediately accepted the letter as evidence without any formal proof by the agent of the Minister, one Mr. Fleming, an employee in the Ministry of Treasury, Economics and Intergovernmental Affairs. The immediate issue which arose was the admissibility of, and if admissible the weight to be accorded to, the letter and its contents, by the Board. Because the Board immediately indicated that it was bound by the government policy announced therein, specifically that relating to the population of Barrie for the year 2011, the parties engaged in an extensive debate on this issue and declined to cross-examine or deferred to a later date the invitation of the Board to examine Mr. Fleming on the letter. It is also apparent from the record that the letter was produced without notice, and as a result the ensuing discussions and submissions did not proceed in as orderly a way as would normally have been the case. These discussions between the Board and counsel eventually led to an adjournment of the Board proceedings to enable the appellant, the Township of Vespra and the County of Simcoe to proceed to the Divisional Court on a judicial review application seeking prohibition and declarations relating to the Board’s declaration that it was bound by the Minister’s letter and therefore was bound without further evidence, or deliberation on the issue, to order the annexation to Barrie of land sufficient to support a population of 125,000. It was argued that the Board had thereby, in the words of Robins J., “so fettered its discretion as to decline jurisdiction and thereby [was]…guilty of jurisdictional error”. (It should be noted that Robins J. did not agree with this submission by the appellant.)

The issue to my mind on this point and at this stage of the discussion of this appeal might be put in this way: had the Board the right in law to adopt, with nothing more, the Minister’s letter as an edict from government establishing the population of Barrie in the year 2011, before the appel-

[Page 161]

lant had the opportunity to examine the witness proffered for that purpose by the government? We are no longer concerned with the right of the appellant to meet the letter and its contents, at least as to the population issue, by adducing its own evidence on the issue as the Court of Appeal has found such a right, and that part of its judgment has not been appealed.

After the Divisional Court had determined (a) that the Board is entitled to accept statements of government policy, (b) that the Board is alone to determine the weight to be given to such statements, (c) that the Board is not in law bound by such policy statements but that by its decision that it was bound, the Board committed no jurisdictional error; the hearing before the Board resumed. The Board then was asked by the appellant and other objectors if the Board still considered itself to be bound by the policy statements in the letter and whether the appellant was entitled to cross-examine on that policy. The Board ruled on this application for directions as follows:

The Board’s direction on this motion is that the Board reiterates its previous conclusion that the Board, on the basis of the Minister’s letter, is bound to provide for a population of 125,000 people by the year 2011.

For reasons stated by the Divisional Court at page 11, the Board does not consider any cross-examination on this is necessary.

This was a reversal by the Board on the question of cross-examination of the Minister’s representative. Prior to the Divisional Court ruling on the application for judicial review, the Board had offered an opportunity to cross-examine Mr. Fleming and the Attorney General’s counsel was then prepared to put him forward to testify. Indeed, counsel for Barrie also suggested Mr. Fleming should be cross-examined. At the same time the Board reiterated its opening position: “We can’t go behind the 125 thousand in view of that letter,…we have to accept that…“.

The confusion of issues before the Board continued on the resumption of the hearings after the Divisional Court judgment was issued but eventu-

[Page 162]

ally the respondent County of Simcoe asked that Mr. McKeough, the provincial Treasurer who was then present on subpoena by the County, be “allowed” to testify. The Board stated it was prepared to hear the Minister but would not order him to testify. After some discussion, counsel for the Minister stated, in effect, that the Minister would be willing to confirm the government policy but not “in terms of examination and so on…“ and the Minister did not take the stand. The confusion concerning the Minister and his cross-examination then continued culminating in this exchange on the matter:

MR. SOPINKA:

Furthermore, if it wasn’t clear—and no doubt it is our fault, if it wasn’t clear to the township what was the extent of your ruling last day as to whether or not we will be entitled to lead evidence to indicate that there are other policies of the Government that conflict with the policy about 125 thousand and so forth.

CHAIRMAN:

It is 125 thousand, that is the ruling.

MEMBER:

That was very clear, Mr. Sopinka.

MR. SOPINKA:

I take it it doesn’t matter as to whether it’s at this stage or any other stage we are not entitled to lead evidence or cross-examine on that issue?

MEMBER:

We have already determined that.

The parties, after that apparent misunderstanding or confused understanding, debated an adjournment on other grounds and never again raised the issue of cross-examination of Mr. Fleming or any other ministerial representative. It is clear that the appellant did not surrender its right to cross-examine this person but all parties seem to conclude that the Board, in adopting the letter and its population policy, foreclosed the appellant’s right to cross‑examination.

While the request, and indeed the earlier proffering of a witness for cross-examination on the Minister’s letter was less than precise, and while

[Page 163]

the initial request was pursued thereafter somewhat fitfully, it must be remembered that the multi-issued application for annexation had been largely fought out by the parties before the population policy of the Department was admitted into evidence in a rather startling fashion. The first reaction of the objectors was that it should be excluded or at least not taken by the Board as instantly and of necessity binding on the Board. The right to cross-examination of a witness on the letter was secondary. The primary issue, whether the policy content of the letter is binding on the Board, has been decided and is not before us. It is difficult, however, to extricate the cross-examination issue and to trim from it all the related and inter-locking aspects, including the first issue as to whether the Board was bound by the government population policy regardless of the evidence to the contrary. Nevertheless, one thing is clear: there was, rightly or wrongly, clearly a denial of an opportunity in the appellant to cross‑examine the person the Minister sent to the Board for that purpose.

The consequences of such denial must be examined primarily in the light of the nature of the hearing prescribed by the statutes. Section 14(4) of The Municipal Act, supra, requires a public hearing on notice to such persons or in such manner as shall be prescribed by the Board, “for the purpose of enquiring into the merits of the application and of hearing any objections that any person may desire to bring to the attention of the Board”. The wording adopted by the Legislature in this provision is broad, and no limitations or qualifications are prescribed in the subsection or elsewhere on the nature or conduct of the hearing. The Board must not, it is clear, adopt any procedure or follow any course that will in any way prevent or limit its enquiry into the “merits” of the application or “any objections” that “any person” may seek to place before the Board. The wide powers of the Board to conduct a full hearing are emphasized by subs. (18), supra, which makes the provision of s. 14 paramount in the event of conflict with any other Act, either “special or general”. The importance of the Board’s decision and of

[Page 164]

its procedures to determine the issues brought before it on such application as we have here is outlined by subs. (19) which exempts annexation orders made under s. 14 from appeals to the Lieutenant Governor in Council, that is the provincial Cabinet, otherwise available to the parties under s. 94 of The Ontario Municipal Board Act, supra, on any question of either fact or law. Under subsections (20) to (24) of s. 14, the order of the Board made on an annexation application is subject only to a direction by the Executive Council for a rehearing; but thereafter the resultant disposition by the Board is “final and not open to appeal”.

The only review of the Board order made under s. 14 is that authorized by s. 95 of The Ontario Municipal Board Act, supra, to the Divisional Court on the leave of that Court, “upon a question of jurisdiction or upon any question of law”. Otherwise, subs. (7) of s. 95 applies, the usual privative provisions precluding review by any other means.

The effect of all these provisions is to leave the Board with the duty to dispose of the annexation issue “upon such terms as it may consider expedient” without any directives, statutory standards or guidelines, and without any right in the executive branch of government to limit the Board by order in council, regulation, directive or otherwise, such as appear, for example, in the Broadcasting Act, R.S.C. 1970, c. B-11, s. 27(1). The Board may order the annexation of more or less land than proposed by the applicant or none at all. The Legislature has assigned to the Board the unlimited duty to hold a public hearing, enquire into the merits of the application and the objections, and thereafter to dispose of the annexation application on the merits as determined by the Board. That is the position of the Board under these statutes.

[Page 165]

The position accorded to the citizens of the community by the Legislature under the same statutes is the absolute and unqualified right to object to the application being granted in whole or in part. There is nothing in the statute which might be construed as authorizing the Board, the Minister or the Court to curtail the right of the people to bring “any objections” that any person may desire to bring to the attention of the Board. More specifically, there is nothing in these statutes to afford members of the executive, the Executive Council or any other agency of state a position superior in any way to the position of the appellant and the other objectors. The statute, for example, does not make the Board duty-bound to receive a letter from the Minister except as put in evidence for or against the application in the ordinary operations of the Board, and certainly, the statute imposes no duty on the Board to receive any such communications in any way prejudicial to the rights of the other participants in the hearing.

The Statutory Powers Procedure Act, 1971, supra, does not assist the respondent or the intervener, the Attorney General of Ontario in their opposition to the cross-examination of Mr. Fleming on the letter. Section 3 of that Act (supra) clearly makes that statute applicable to the hearing under s. 14 of The Municipal Act, supra. Section 10(c) is directly applicable to the issue at hand. Here the Ministry volunteered a witness and at one stage or another the Board and all the parties before it assumed cross-examination of that witness should and would take place. Subsection (c) makes no exception in favour of a member of the executive, nor does it leave any discretion in any agency or tribunal, subject to its provisions, to escape from them. By section 12 the Board is authorized to compel a person without limitation to give evidence. Here the difficulty of an unwilling witness does not arise, except in the case of the Minister, but no issue has been made of his election not to testify because all parties appeared to accept the reasonableness of having a departmental official attend the hearing as a witness. Counsel for an objector questioned Mr. Fleming’s competency for the task without some further description of his qualifications to testify

[Page 166]

on the population policy on behalf of the Minister.

As to the fear expressed by counsel for the Attorney General that confidential information or other matters of concern to the executive branch of government would be disclosed at any such cross-examination, one must turn to s. 15(2) of The Statutory Powers Procedure Act, 1971, supra. The general law of evidence there made applicable affords ample protection to the state where disclosure might be contrary to the public interest. See Halsbury, vol. 17, 4th éd., at p. 167, para. 238; Cross on Evidence (5th éd., 1979), at pp. 304 ff; Conway v. Rimmer³, at p. 953. To rule out all evidence from such a source because some material or facts could not be introduced would find no support in the law of evidence. See Broome v. Broome⁴.

The only limitation on cross-examination countenanced by the statute, in addition to that excluded by s. 15(2), is that found in s. 23(2) where the tribunal might curtail cross‑examination where “it is satisfied” that the cross-examination has been sufficient to disclose fairly the facts about which the witnesses testified. In my view, all the statutes discussed above combine to establish a clear code of rights in the parties and obligations in the Board which require here the opportunity in the objector-appellant to meet by cross‑examination the case being put against the position of the appellant. This is so whether the proceeding can or cannot be classified as a “to” or whether the function of the Board, upon the completion of the hearing and in disposing of the application, is legislative, administrative, quasi-judicial, ministerial or fits into any of the other traditional compartments into which tribunals’ functions have been placed.

It is within the context of a statutory process that it must be noted that cross-examination is a vital element of the adversarial system applied and followed in our legal system, including, in many instances, before administrative tribunals since the earliest times. Indeed the adversarial system,

[Page 167]

founded on cross-examination and the right to meet the case being made against the litigant, civil or criminal, is the procedural substructure upon which the common law itself has been built. That is not to say that because our court system is founded upon these institutions and procedures that administrative tribunals must apply the same techniques. Indeed, there are many tribunals in the modern community which do not follow the traditional adversarial road. On the other hand, where the rights of the citizen are involved and the statute affords him the right to a full hearing, including a hearing of his demonstration of his rights, one would expect to find the clearest statutory curtailment of the citizen’s right to meet the case made against him by cross-examination. In Wigmore on Evidence (Chadbourne Rev. 1974) vol. 5, p. 32, para. 1367, the following analysis of the role of cross-examination appears:

For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience.

Not even the abuses, the mishandlings, and the puerilities which are so often found associated with cross-examination have availed to nullify its value. It may be that in more than one sense it takes the place in our system which torture occupied in the mediaeval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth.

If we omit political considerations of broader range, then cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial procedure.

The procedural format adopted by the administrative tribunal must adhere to the provisions of the parent statute of the Board. The process of interpreting and applying statutory policy will be

[Page 168]

the dominant influence in the workings of such an administrative tribunal. Where the Board proceeds in the discharge of its mandate to determine the rights of the contending parties before it on the traditional basis wherein the onus falls upon the contender to introduce the facts and submissions upon which he will rely, the Board technique will take on something of the appearance of a traditional court. Where, on the other hand, the Board, by its legislative mandate or the nature of the subject matter assigned to its administration, is more concerned with community interests at large, and with technical policy aspects of a specialized subject, one cannot expect the tribunal to function in the manner of the traditional court. This is particularly so where Board membership is drawn partly or entirely from persons experienced or trained in the sector of activity consigned to the administrative supervision of the Board. Again where the Board in its statutory role takes on the complexion of a department of the executive branch of government concerned with the execution of a policy laid down in broad concept by the Legislature, and where the Board has the delegated authority to issue regulations or has a broad discretionary power to licence persons or activities, the trappings and habits of the traditional courts have long ago been discarded.

We are here concerned with that sector of the common law sometimes referred to as the principles of natural justice, fairness, and audi alteram partem. These principles, of course, are of diminished impact in instances such as we have here where the constituting statutes themselves outline the necessity for a hearing and, by direction and indirection, establish the procedure to be followed in the conduct of such hearing. In proceeding to examine some of the authorities, new and old, one must constantly be cautious that the overriding consideration is the statutes themselves. Nevertheless, a reference to some authorities is helpful in applying the statutes to these proceedings. One may refer, for example, to Halsbury, vol. 1, 4th Ed., p. 94, para. 76, where it is stated:

Rejection of a request to be permitted to cross-examine witnesses who appear at a hearing for the other side will normally be construed as a breach of natural justice; but it is not a necessary ingredient of natural justice that

[Page 169]

one who has submitted relevant evidence in writing or ex parte must be produced for cross‑examination, provided that the evidence is disclosed and an adequate opportunity is given to reply to it.

It was said long ago (Cooper v. Wandsworth Board of Works⁵) that the common law must introduce into the administrative process through the concept of natural justice safeguards of the interests of the community where the Legislature has neglected to do so, whether or not that function of the administrative tribunal was classically a judicial function. Here the rights of the parties stand to be permanently affected whatever the character in law be of the Board’s function; hence the action by the Legislature in assuring a right to all affected to be heard. Fifty years later the Court, in The Board of Education v. Rice⁶, applied the concept of natural justice in administrative law, in its procedural sense, whether or not the function in question happened to be judicial or might be more accurately otherwise classified. Lord Loreburn L.C. stated at p. 182:

In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. Provided this is done, there is no appeal from the determination of the Board…

Shortly thereafter the Court, in Local Government Board v. Arlidge⁷, took the opportunity to establish clearly the independence of the administrative body in adopting such procedures as it might determine suitable to its task subject only to such

[Page 170]

procedural safeguards as conform to the rules of natural justice where the administrative action affects the rights of the parties.

In Wilson v. Esquimalt and Nanaimo Railway Company⁸, at pp. 211-13, Duff J. (as he then was) pointed out that the failure of the Lieutenant Governor in Council in that case to direct production of certain deponents of documents received in the administrative process for cross-examination did not by itself amount to a reviewable error. This was so because the parties opposite had been given the fullest opportunity otherwise to present their case. The statute in that case did not establish the right to a hearing nor direct the Lieutenant Governor in Council in the manner as the statute has directed the Board here.

The development of the rules of natural justice and later, “fairness”, their ebb and flow, and their application to “judicial” and “administrative” functions are detailed in Loughlin, “Procedural Fairness: A Study of the Crisis in Administrative Law Theory” (1978), 28 U. of T. L.J. 215.

Gradually the principle of judicial surveillance through the application of the rules of natural justice to the administrative tribunals was extended to the administrative function. By this time the expression “the duty to act fairly” had been added to the judicial vocabulary (B. Johnson & Co. (Builders), Ltd. v. Minister of Health⁹), with reference to quasi-judicial functions. The extension of the principle of natural justice by the courts finally reached the purely administrative act in Ridge v. Baldwin¹⁰, and by 1967 in Re H.K.¹¹, Lord Parker concluded that the classification of the particular function of the tribunal under review did not determine the judicial duty to intervene for the protection of the rights of a party to the proceeding. In this Court the development continued with the application of the doctrine of ‘procedural fairness’ in Nicholson v. Haldimand-Norfolk Regional

[Page 171]

Board of Commissioners of Police¹², to an administrative action not involving the formal functioning of an administrative tribunal or the protection of a defined statutory right. Sometimes the right to procedural fairness moved into “the right to know the case against the party” as in R. v. Gaming Board for Great Britain, Ex parte Benaim and Khaida¹³, and sometimes the test seems to revert to the days of the Cooper case, supra, where the Legislature may or may not have prescribed the procedures to be followed by the administrative tribunal. Even then Lord Wilberforce in Wiseman v. Borneman¹⁴, concluded, at p. 317;

It is necessary to look at the procedure in its setting and ask the question whether it operates unfairly to the taxpayer to a point where the courts must supply the legislative omission.

Here the Legislature has provided a right of appeal on all issues of law and jurisdiction. It has also prescribed a duty in the Board to hear all objections, and under The Statutory Powers Procedure Act, 1971, supra, s. 10(c) and s. 23(2), the requirement in the Board to afford an opportunity to parties appearing to cross-examine witnesses.

It must be emphasized that if the appellant has here the right to cross-examine the representative of the Ministry, as I believe he does, it is not for the appellate court to withhold such right because in its judgment it is doubtful, or even impossible, in the view of the Court for the appellant to advance its case by such cross-examination. The decision to exercise the right is solely that of the holder of the right. He, of course, must exercise it at his peril as is the case in any other administrative or judicial proceeding where such a right arises.

The relationship of “independent” agencies to the executive branch of government, in so far as that relationship affects the procedural rights of parties before the tribunal, can only be determined

[Page 172]

by reference to the agency’s parent statute, and other relevant statute or common law prescribing procedural norms. It is not for a court to go behind these ground rules or modify them because of perceived far-reaching effects. If on its face an agency is held out in the constituting legislation as “independent” of the executive, that is with functions independent of the executive branch, it remains that way for all purposes until the Legislature exercises its undoubted right to alter, by providing for policy directions for example, the position and procedure of the agency. The right to cross-examine is not immutable. Atkey, “The Statutory Powers Procedure Act, 1971” (1972), 10 Osgoode Hall L.J. 155, at p. 166 discusses another legislative device which could be construed to limit cross-examination:

A major problem related to cross-examination arises in the case of specific statutes where a key witness, generally a government official, is specifically authorized to submit his evidence in writing and thereby avoid being summonsed to the hearing and subjected to cross-examination. Consider the following section relating to submissions of the Director of Family Benefits at a Board of Review hearing under recent amendments to The Family Benefits Act contained in The Civil Rights Statute Law Amendment Act:

(6) The Director may make his submissions at a hearing of the board or review in writing, but the applicant or recipient who is a party to the hearing shall be afforded an opportunity to examine before the hearing any such submission or any written or documentary evidence that the Director proposes will be produced or any report the contents of which the Director proposes will be given in evidence at the hearing.

This section may be construed as meaning that the Director is not required to attend the hearing. While his written statement must be provided to the parties for examination in advance of the hearing, it is unlikely that the Board of Review would issue a summons to the Director in view of the specific statutory direction allowing him to make his submissions in writing. Therefore, even though an applicant at the Board hearing may be faced with the damaging statements submitted by the Director, he is effectively prevented from challenging them through the usual device of cross-examination and his only protection is to lead his own evidence to con-

[Page 173]

tradict the written statements submitted. [Footnotes omitted]

The apparent immunity to cross-examination granted the Director of Family Benefits was contained in The Civil Rights Statute Law Amendment Act, 1971, 1971 (Ont.), c. 50. That Act was passed with The Statutory Powers Procedure Act, 1971, supra, The Judicial Review Procedure Act, 1971, 1971 (Ont.), c. 48, and The Public Inquiries Act, 1971, 1971 (Ont.), c. 49, as part of an omnibus reform of administrative law in the Province of Ontario. The philosophy pervading this reform was expressed by the Report of the Royal Commission of Inquiry Into Civil Rights, “the McRuer Report”. That report stated as a principle at vol. 1, p. 216:

The parties should be entitled to examine their own witnesses directly and to cross-examine a witness opposed to their interest, where the cross-examination is required for a full disclosure of facts. [Footnotes omitted]

The Legislature enshrined this principle in s. 10 of The Statutory Powers Procedure Act, 1971, supra. Derogations to the principle were specifically enacted when a government official was to be excused from cross-examination. No such enactment applies to this case.

A court will require the clearest statutory direction along the lines, for example, of the Broadcasting Act, supra, to enable the executive branch of government to give binding policy directions to an administrative tribunal and to make such directions immune from challenge by cross-examination or otherwise by the objectors. It is, of course, open to the Legislature at any time to make provision for the issuance of binding directions by the executive branch to the Board whereby the Board would be required to conform strictly to the announced policies of the executive branch or its agent, a Minister; and thereby to withdraw the subject of the policies so announced from the hearing procedure. The furthest the Legislature appears to have gone here is found in s. 4(2a) of The Ministry of Treasury, Economics and Intergovernmental Affairs Act, 1972, 1972 (Ont.), c. 3 as amended

[Page 174]

by 1973 (Ont.), c. 169, which reads:

4. …

(2a) The Treasurer is responsible for the formulation of policy with respect to land use planning by the Province and the municipalities and has the direction and control of the administration of the law relating thereto.

Blair J.A. in the Court of Appeal commented on this section at p. 322:

This section occurs in the group of statutes that describe the duties and responsibilities of the various departments of the Government of Ontario. It simply designates the Treasurer as the Minister responsible for land use planning in addition to his other functions. This subsection does not compel or require the Board to accept his policy declarations.

I respectfully agree with and adopt those comments. In any case, s. 4(2) of the same Act provides:

4. …

(2) The Treasurer shall exercise general oversight over municipal institutions and their administration and such special oversight and powers in relation thereto as are provided in or under the authority of this or any other general or special Act, but nothing herein shall be deemed to divest the Ontario Municipal Board of any jurisdiction or powers conferred on it by this or any other Act.

This is not a case of the right to cross-examination being used to challenge the policies of the executive branch of government in such a way as to bring the administrative tribunal into the political arena. It is merely the exercise by a party properly before the Board on an annexation application of a right accorded to that party by the Legislature. The Legislature has, of course, granted by s. 14 of The Municipal Act, supra, an identical right to all other parties who wish to object to applications for annexation. The role assigned to the Board by the Legislature in the legislation as now drafted may entail some conflict between the administrative result and certain government policies or actions. The remedy does not lie in the Board and the Court denying the citizen his statutory right to oppose annexation, but in

[Page 175]

achieving by legislative adjustment some better integration of Board and executive branch actions.

Thus on this record, by the interpretation of the provisions of the three statutes as they apply to the hearing by the Board, and by the application of the principles of common law, the right of the appellant to cross-examine a representative of the Minister on the letter clearly emerges. In my view, therefore, the Board erred when it refused to accord to the appellant the opportunity to do so.

By its notice of appeal to this Court the appellant has raised the further ground of appeal:

The Court of Appeal erred in failing to hold that the Board’s reliance on the evidence from a previous annexation hearing was a denial of natural justice.

The appellant in this Court supported this ground for appeal by referring to the adoption by the Board in its award of a “vacancy factor” of four to one when by its own statement in its award the Board had concluded that there was no evidence adduced during the hearing to support this vacancy factor. The appellant further submitted that the Board “filled the void”, to use counsel’s words, by falling back on submissions received by the Board on an unrelated application from “an unnamed witness”. These submissions by the appellant appear to find their basis in part from the following comment by the Board in its award, supra, at p. 227:

In spite of all the planning evidence that was given, none dealt with the question of what vacancy factor an industry requires in order to induce it to move.

After referring to an example of a brewery locating in Barrie the Board then stated on the same page:

If we assume that in order to induce industries to move to Barrie they are going to have to be provided with industrial land at four times their present requirements, we would have to double the industrial requirements in the above figures.

[Page 176]

Reference is there made to an early portion of the award where the Board expressed the view that a vacancy factor of one hundred per cent was too low. Lacourcière J.A. in the Court of Appeal (and on this point the Court was unanimous) stated:

There was evidence before the Board—which the learned dissenting Judge [Craig J. in the Divisional Court] reviewed—and its weight could not be subject to review on the limited appeal provided by s. 95 of The Ontario Municipal Board Act. In calculating the amount of land to be annexed by Barrie, the Board determined what is called a Vacancy factor’ which would be likely to attract new industry. It cited, as an example, an experience another panel had some years previously when Barrie had sought to annex land to provide for a new industry. This matter had not been mentioned at the hearing and was raised for the first time in the Board’s reasons for judgment.

I regard it as a sound rule for a tribunal intending to use any prior decision as a precedent to give parties to the hearing proper notice so that they may comment on it. It does not, however, appear to me that the Board based its decision upon its recollection of this past transaction. It appears from its reasons that the Board made its decision on the vacancy factor on the basis of general principles which it had accepted in previous cases and on other evidence which had been presented to it and used its previous experience in Barrie, not as a compelling precedent, but only as an example. I am therefore satisfied that the Board did not commit an error of law on this second question.

Craig J. did indeed review the evidentiary record on this point and I am in respectful agreement with the conclusion reached by the Court of Appeal and would dismiss this ground for appeal.

Finally, the appellant submitted that the Court of Appeal erred “in limiting the scope of evidence and argument that can be presented to the Board by virtue of subparagraph 5(c) of paragraph 2 of its order”. I have already set out above the portion of the Court of Appeal order in question. In the concluding portion of his reasons for judgment Lacourcière J.A. stated that he would allow the appeal and “substitute an order whereby the Divisional Court certified to the Board its opinion that

[Page 177]

the Board committed an error of law within its jurisdiction in refusing to hear evidence and argument on the subject of a ‘forecast’ population before deciding that it was bound by the statement of government policy…”

The actual order issued by the Court of Appeal as set out above refers to “future population”. The appellant seeks to delete the word “future” notwithstanding the presence in the reasons for judgment of the Court of the word “forecast”. Apparently the Court of Appeal, after the hearing with respect to the terms of the formal order, inserted the word “future” in place of the word “forecast”. In my view there is no significant difference so far as these proceedings are concerned. The Minister’s letter to the Board dated December 15, 1976 deals with a report to which reference is therein made that establishes for planning purposes a future population in the Barrie area of 125,000 people. The letter itself makes no reference to the year 2011 as does the evidence but obviously the estimate relates to some time in the future after the proposed annexation order will have been issued, if it is to be issued.

I can see nothing in the record which would make the inclusion of the words “future population” in the order an error in law. The Court of Appeal in allowing the appeal by the appellant in that Court on the issue of the right to tender evidence in response to the Minister’s letter saw fit to issue a formal order on the basis set out above and in my view, there being no error in law revealed on the record by the adoption of the terminology of paragraph 5(c), I would not accept the appellant’s submissions on this ground of appeal.

I therefore would allow the appeal with reference to the right in the appellant to cross-examine the ministerial representative and would direct that the certificate certifying the Court’s opinion to the Board be amended accordingly. Costs should be to the appellant in this Court and I would not disturb the disposition of costs made in the courts below.

[Page 178]

Appeal allowed with costs.

Solicitors for the appellant: Stikeman, Elliott, Robarts & Bowman, Toronto.

Solicitors for the respondent the Corporation of the City of Barrie: Gardiner, Roberts, Toronto.

Solicitors for the respondent South Simcoe Estates: Davis, Webb, Hollinrake, Brampton.

Solicitors for the respondent Paramount Development Corporation Limited: Jarvis, Blott, Fejer & Pepino, Toronto.

Solicitor for the intervener the Attorney General of Ontario: Blenus Wright, Toronto.

Footnotes

1. 1(1978), 1978 57 (ON CA), 95 D.L.R. (3d) 298, 23 O.R. (2d) 147.
2. 2(1977), 7 O.M.B.R. 225.
3. 3[1968] A.C. 910.
4. 4[1955] P. 190.
5. 5(1863), 14 C.B. (n.s.) 180.
6. 6[1911] A.C. 179.
7. 7[1915] A.C. 120.
8. 8[1922] A.C. 202.
9. 9[1947] 2 All E.R. 395.
10. 10[1964] A.C. 40.
11. 11[1967] 2 Q.B. 617.
12. 121978 24 (SCC), [1979] 1 S.C.R. 311.
13. 13[1970] 2 Q.B. 417.
14. 14[1971] A.C. 297.