CITATION: City of Hamilton v. Attorney General et al., 2015 ONSC 1046
COURT FILE NO.: C-383-04
DATE: 2015-02-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
City of Hamilton
Plaintiff
Attorney General of Canada, Christine Stewart, David Anderson Herb Dhaliwal, Sheila Copps, Nancy Adams, Paul Bernier, W. Bill Bien, Edwin R. De Bruyn, Steve Burgess, Mike Cadman, Paula Caldwell, Robert Connelly, Rob Dobos, Margit Doneit, John Fischer, Rosaline Frith, Nicole Gagnier, Denise Gibbs, Cathy Gee, Jonathan H. Gee, Sid Gershberg, D. V. Gillman, Carole Giroux, Ian Glen, Michael Goffin, Francois Guimont, Len Good, Keith Grady, Barbara Hennessy, Michaela Huard, Wayne Hyatt, Louise Knox, Mary Komarynsky, Janice Kostash, Olivier Lalande, Deb Lauder, Patrice Leblanc, Sharon Leonhard, Simon Llewellyn, Nancy Maguire, Laud Matos, Claire Michaud, John Mills, Tom Muir, Brad Parker, L.S. Parsons, Raymond Pierce, Richard Pratt, Ulana Perovic, Kim Ray, David Robinson, Michael Rayner, Guy Riverin, David Robinson, Craig Ryan, Nathalie Seguin, Michael Shaw, Ron Shimizu, Mike Shiomi, Jeff Stein, Rob Stevens, Donna Stewart, John Struger, Gerry E. Swanson, Lucie Tessier, Lisa Vitpls, Wayne Wouters, Bruce Young
Defendants
Scott Smith, Ross Earnshaw, for the Plaintiff
Glynis Evans for the Defendants
HEARD: Tuesday, February 10, 2015
Judgment
[1] This is a motion for leave brought by the Defendants to examine the plaintiff by both written and oral questions pursuant to Rule 31.02 of the Rules of Civil Procedure. The Rule states the following:
31.02 (1) Subject to subrule (2), an examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers, but the examining party is not entitled to subject a person to both forms of examination except with leave of the court.
(2) Where more than one party is entitled to examine a person, the examination for discovery shall take the form of an oral examination, unless all the parties entitled to examine the person agree otherwise.
The Plaintiff does not consent.
Background
[2] The Red Hill Creek Expressway (RHCE) is a highway running along the south border of the City of Hamilton (Hamilton) that connects highway 403 with the Lincoln Alexander Expressway and travels North through the Red Hill Valley (RHV) to the Queen Elizabeth Highway (QEH). It was planned from the 1950’s.
[3] On October 24, 1985 after a 99 day hearing it was approved by a Joint Board. Actual physical construction of the RHCE began on June 26, 1990. On December 17, 1990 the provincial government withdrew funding for the section through the RHV. In 1995, the provincial government restored the funding for construction through the RHV.
[4] On January 19, 1995 the Canadian Environmental Assessment Act (CEAA) came into effect. On May 4, 1999 David Anderson, the Minister of Fisheries and Oceans in the federal government requested in writing of Christine Stewart, the Minister of the Environment that she refer the RHCE for an environmental assessment under the CEAA. On May 6, 1999 Minister Stewart made the referral.
[5] Hamilton retained Mr. D. Estrin to represent it. In June, 1999 he advised the federal government that Hamilton would be bringing an application in Federal Court to set aside Minister Stewart’s directive. On April 24, 2001 Justice Dawson released Hamilton-Wentworth v. Canada [2001] F.C.J. No. 627 (HW) in which she held that CEAA could not apply to the RHCE. She set aside Minister Stewart’s directive. Justice Dawson’s decision was upheld by the Federal Court of Appeal on November 24, 2001 in Hamilton-Wentworth v. Canada [2001] F.C.J. No. 1700.
[6] Justice Dawson gave three reasons for her decision. First, she held that the “grandfathering” provision applied. CEAA states the following:
[2] …"project" means in relation to a physical work, any proposed construction…
[74] (4) Where the construction … of a physical work … was initiated before June 22, 1984, this Act shall not apply in respect of the issuance … of a licence… unless the issuance or renewal entails a modification, … to the project …
[7] The defendants submitted that construction meant when the actual physical work began. It argued that construction began on January 19, 1995. Justice Dawson held that construction began in the planning stages of the RHCE long before June 22, 1984. She also held that the construction of the RHCE through the RHV could not be regarded as a modification of the original project.
[8] Second, she held that the CEAA could not apply to the RHCE before the act came into effect on January 19, 1995. The CEAA states the following;
[11] (1) Where an environmental assessment of a project is required, the federal authority … shall ensure that the environmental assessment is conducted as early as is practicable in the planning stages of the project and before irrevocable decisions are made ….
She held that irrevocable decisions had been made in relation to the RHCE before January 19, 1995.
[9] Third, Justice Dawson held that the referral of the RHCE for an environmental assessment could not be supported by a federal head of power. Minister Stewart had acceded to Minister Anderson’s request to refer the RHCE for an environmental assessment under the CEAA because of its effect on migratory birds and because of public concern about the project. However, there was no scientific evidence that the RHCE would have any effect on migratory birds. Public concern about the highway focused on the need for it. However, the construction of highways was solely in provincial jurisdiction.
[10] Hamilton issued a notice of action on April 1, 2004 and a statement of claim on September 29, 2004 against the Attorney General of Canada, Christine Stewart, David Anderson, Sheila Copps and many of their advisors. Sheila Copps who represented Hamilton in Parliament was a Cabinet Minister in the federal government. Hamilton provided particulars of its allegations in its statement of claim to Ms. G. Evans, counsel for the Defendants in letter dated November 25, 2005 from Mr. Estrin. The Defendants filed a statement of defence dated February 2, 2006. Hamilton initially named 67 Defendants. Hamilton discontinued the action against some and others have died. There remain 46 Defendants.
[11] Hamilton alleges the intentional tort of misfeasance in public office collectively against the Defendants by reason of the referral of the RHCE for an environmental assessment. As a result of the referral Hamilton alleges that completion of the project was delayed causing increased costs. It claims $50,000,000 in general damages and $25,000,000 in aggravated, exemplary and punitive damages. Hamilton alleges that the Defendants knew or were wilfully blind to the fact that the CEAA could not apply to the RHCE when they attempted to have it apply in May of 1999.
[12] Misfeasance in public office was defined most recently by the Court of Appeal in St. Elizabeth Home Society v. City of Hamilton, 2010 ONCA 280, [2010] O.J. No. 1515 in the judgment of Justices Laskin and Rouleau as follows:
[20] Misfeasance in public office is an intentional tort. The tort is meant to provide a measure of accountability for public officials who do not exercise their duties of office in good faith. To make out this tort, a plaintiff must prove four elements:
a. The public official deliberately engaged in unlawful conduct in the exercise of public functions;
b. The public official was aware that the conduct was unlawful and was likely to injure the plaintiff;
c. The public official's tortious conduct was the legal cause of the plaintiff's injuries; and
d. The injuries suffered are compensable in tort law.
See Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 at para. 32.
[13] Hamilton brought a motion before me in which they sought orders as a result of admissions and concessions made by the Defendants. They also sought orders based on issues which they submitted were res judicata arising out of the judgment of Justice Dawson in HW. They relied on the doctrines of issue estoppel and abuse of process. I found that the City asked for 21 “non-knowledge orders” and 5 “knowledge” orders. I held that there was no need for the non-knowledge orders. I found that the knowledge orders could be reduced to 2 against the defendant Edwin R. De Bruyn (De Bruyn). Of these orders sought by Hamilton, I held that Justice Dawson did not hold what Hamilton alleged that she held and moreover I would not have granted them if I had found that she found what Hamilton sought.
[14] I stated the following:
[62] Anderson requested of Stewart under section 25 of the CEAA that she refer the Expressway to a panel review. She did do so under section 29. DeBruyn was a senior advisor to Anderson. The City alleges that he played a large role in constructing the wording in the letter of Anderson dated May 4, 1999 to Stewart requesting that she refer the Expressway to a review panel because "the project as described may have significant adverse environmental effects on migratory birds" and "considering the level of public concern surrounding this project". Anderson could be expected to follow the advice of DeBruyn and others with whom DeBruyn worked. He would likely sign a letter drafted and presented to him by them. DeBruyn's knowledge could reasonably be attributed to Anderson. Stewart acted on the request of Anderson. A finding that DeBruyn knew that CEAA could not apply to the Expressway could easily be imputed to Anderson and then to Stewart. The granting of these orders to the City could be equivalent to granting an order to the City that Anderson and Stewart knew that the CEAA did not apply to the Expressway. Hence when they acted together to refer the Expressway to a panel review they knew that they were acting without statutory authority and hence unlawfully. The granting of these requested "knowledge orders" to the City against DeBruyn would place the City well down the path of proving misfeasance in public office against Stewart and Anderson.
And:
(4) Potential Injustice
[77] For the Superior Court to find that DeBruyn advised Anderson that the CEAA applied to the Expressway when he knew that it did not would be devastating to his reputation and career. He has a right to defend himself. He has a right to have his credibility determined by a judge who hears and sees him testify. To require DeBruyn to commence defending himself under the burden of a finding that he knew that the CEAA did not apply to the Expressway, in my view, would be a terrible injustice to him.
XI Abuse of Process
[78] The plaintiff makes serious allegations against 3 cabinet ministers and their advisers of misfeasance in public office. In my view it could be not an abuse of process that the City be required to prove their allegations against the Defendants without the assistance of orders on issues which the Defendants have conceded. I have narrowed the requested orders that need to be addressed to 2 "knowledge orders" against DeBruyn. As I have said the consequences of these orders being granted against him would extremely serious for him. I have found that Justice Dawson did not find that he knew what the City seeks to reduce to orders. Even if she did so find in my view it would not be an abuse of process to require the City to prove that he had this knowledge in this action. On the contrary it would be an abuse of process not to give DeBruyn an opportunity to defend himself against these allegations by way of oral evidence in open court.
I dismissed the motion.
The Particulars
[15] The heart of Hamilton’s allegations against the Defendants is contained in paragraphs of the statement of claim as follows:
The Defendants other than Her Majesty deliberately and unlawfully used their public office to harm the City by attempting to imperil and prevent completion, and in the result substantially delaying completion and substantially increasing the ultimate cost of, the City’s Red Hill Creek Expressway (“the Expressway”).
The Defendants, knowing that the Canadian Environmental Assessment Act, S.C. 1992, c. 37, as amended (CEAA) could not statutorily or constitutionally be applied so as to allow its use to question the need for or alternatives to the Expressway, but knowing that the application of CEAA to the Expressway would allow them to stop or imperil the City in completing the Expressway, determined in 1999 to utilize CEAA in an unprecedented, illegal and unconstitutional manner in order to achieve that objective.
The Defendants knew, when they determined to use their public office to stop the City completing the Expressway, that the City would be harmed in the result…
Despite being warned by the City, and in any event knowing that application of CEAA to the Expressway was illegal, unconstitutional and unfair, these Defendants acted to stop completion of the Expressway and harm the City by purporting to apply CEAA with reckless indifference to their lack of statutory and constitutional authority to do so, with knowledge that there was no valid scientific basis to do so, and with the intent to harm the City in its legitimate objective.
All of the Defendants knew or were recklessly indifferent to the consequence that that the City or its predecessor, the Region, would suffer substantial harm as a result of increased costs, contract interruptions and delays in construction of the Expressway imposed by causing the Expressway project to be reviewed by a CEAA Review Panel and ultimately by the Federal Ministers and Federal Cabinet.
Alternatively, the Defendants abused their public office by engaging in targeted malice towards the City’s completion of the Expressway for the purpose of appeasing a minority of public opinion in Minister Copp’s riding opposed to the Expressway and to allegedly protect migratory birds.
By purporting to invoke CEAA at all regarding the Expressway, and especially to cause a public hearing review of the need for and alternatives to the Expressway, the Defendants abused their public office by an intentional use of CEAA for an improper purpose; with actual knowledge that their intentions to so apply it for this purpose was beyond their statutory and constitutional authority, or with reckless indifference or wilful blindness to their lack of authority to so do.
Alternatively, the Defendants intended to harm the City by demonstrating an actual intent to prevent or imperil completion of the Expressway, with knowledge that their course of conduct would cause harm to the City, or by their reckless indifference or wilful blindness to the harm that was foreseeable.
[16] By way of an 18-page letter dated September 19, 2005 at the request of the Defendants, Hamilton purportedly provided particulars - organized by groups of Defendants from Environment Canada, the Department of Fisheries and Oceans, and the Canadian Environmental Assessment Agency, respectively – of its claim in relation to the liability of each defendant under headings as follows:
(a) “What role each defendant is alleged to have had as a public servant in matters pertaining to the Expressway or the City of Hamilton”;
(b) “The deliberate and unlawful conduct each defendant is alleged to have engaged in”;
(c) “If a breach of statute is alleged with respect to any of the Defendants, the statutory provisions that were breached, when and how”;
(d) “If acting in excess of the powers granted is alleged, what powers were granted and which specific activity was in excess of those powers”;
(e) “The circumstances from which it can be inferred that each defendant acted with malice or in bad faith directed at the City”;
(f) “How each individual defendant’s actions caused or contributed to the City’s alleged loss”; and
(g) “Which conduct by which Defendants was so high-handed and malicious that it should attract an award of punitive damages”.
Attached hereto and marked Exhibit 1 is the statement of particulars which Hamilton provided.
[17] Ayesha Laldin is co-counsel with Ms. Evans from the Department of Justice defending the Defendants in this action. She filed an affidavit sworn June 5, 2014 in support of this motion. She expressed the opinion in para. 28 of her affidavit that “the particulars provided by the City …asserted general allegations against all of the Defendants globally without detailing what particular allegations of wrongdoing were being made as against any particular defendant”.
[18] In Copland v. Commodore Business Machines Ltd., 1985 CanLII 2190 (ON SC), [1985] O.J. No. 2675 Master Sandler defined particulars as follows:
[12] Under rule 25.06(1):
25.06(1) Every pleading shall contain a concise statement of the material facts on which the party relies ... but not the evidence by which those facts are to be proved.
[13] … Material facts must be pleaded; evidence must not be pleaded. In between the concept of "material facts" and the concept of "evidence", is the concept of "particulars". These are additional bits of information, or data, or detail, that flesh out the "material facts", but they are not so detailed as to amount to "evidence". …
[19] I agree with the Defendants that what Hamilton calls particulars is simply a regurgitation of the pleadings. They add nothing to the pleadings. They do not satisfy the test for particulars set out in Copland. Ms. Evans said that rather than bring a motion for a better statement of particulars the Defendants filed a statement of defence to move the action forward.
[20] Hamilton has examined 12 Defendants over 16.5 days for over 100 hours with the consent of the Defendants between March, 2012 and July, 2013. They have 1 further defendant whom they wish to examine who is not available until April for personal reasons.
[21] In Canada (Attorney General) v. Rainone Construction Ltd, [2003] O.J. No. 6088; SeeWind Design Corp. (Re), 2013 ONSC 5040 and 2038724 Ontario Ltd. v. Quizno’s Canada Restaurant Corp, 2012 ONSC 6549 the parties consented to written and oral discoveries which appear to have been successful procedurally. In Drager v. Royal & Sunalliance,2005 CanLII 19825 (ON SC), [2005] O.J. No. 380 the plaintiff sought to amend its statement of claim after oral discoveries. The Defendants opposed for tactical reasons. Justice Pierce held that they ought to have consented to the amendment. She allowed the amendment. She ordered written interrogatories of the plaintiffs on the amendment and that the representatives of the defendant insurers who were in Toronto attend for further oral discoveries in Thunder Bay which is where the plaintiffs resided at their own expense. She awarded costs to the plaintiffs. Justice Zelinski denied the Defendants leave to appeal (2005 CanLII 19827 (ON SC), [2005] O.J. No.834). He held that the manner in which Justice Pierce ordered further discoveries to take place was in her discretion (para.38).
[22] The Defendants state in their factum the following:
- Combined oral and written discovery of the City would be more efficient, expeditious, and less costly for both parties for the following reasons:
(a) It will significantly shorten the time required for discovery of the City if some of that discovery can be conducted by written interrogatories. There are 46 Defendants against whom the City alleges deliberate personal misconduct. If the examination for discovery of the City were to be conducted only by oral examination, in order to elicit the specific allegations of wrongdoing against each defendant, the Defendants’ counsel would be required to ask the same questions in respect of each defendant 46 times.
(b) It will significantly reduce costs to the public associated with multiple lawyers and a verbatim reporter attending at oral examinations if some discovery can be conducted by written interrogatories.
(c) It will expedite the completion of the discovery of the City. Written interrogatories can be answered while the City completes its documentary production and prepares for its oral examination. Furthermore, written interrogatories could eliminate the need for lengthy and time-consuming answers to undertakings which would result if the City were to be examined only orally.
(d) It will greatly simplify and expedite the presentation of the case at trial, to the benefit of the trial judge, if the specific allegations made against each individual defendant are organized and provided in written answers to interrogatories, rather than through lengthy and disjointed oral discovery transcripts and undertaking answers.
[23] Hamilton submits that it would be unfair for the Defendants to cross examine the City’s representatives on their written answers in an examination for discovery. I disagree. Rule 31.06 (1) (b) permits cross examination on an examination for discovery unless the question is directed solely to the witness’s credibility. Hamilton will have cross examined the Defendants that they have chosen to examine for discovery on statements made by them on many documents which the Defendants have produced.
[24] Hamilton argues that written examinations followed by oral examinations will be less effective than oral examinations alone. The Defendants argue that oral examination will inevitably lead to undertakings to produce documents and further attendances for oral examinations on these documents. If written questions take place before oral examination, follow up written question should result in all relevant documents being produced before oral examinations begin which may not be necessary at all once the documents are produced. If oral examination is necessary given that the counsel for the Defendants will have had an opportunity to examine all relevant documents before oral examinations take place the oral examinations will be more focused and shorter. I agree with the Defendants.
[25] Hamilton has tried to resist a full trial on all issues by bringing a res judicata motion that I held had no merit and which Hamilton did not appeal. It has now brought a motion with this motion to bifurcate liability and damages which I also hold has no merit.
[26] The scope of Hamilton’s allegations against the Defendants is breathtaking. Ms. Evans in her factum filed on behalf of the Defendants on this motion states the following:
- In this action, the City claims that 43 current or former public servants and 3 former Cabinet Ministers maliciously conspired to subject the City’s highway to a federal environmental assessment, allegedly knowing that they did not have jurisdiction to do so, in order to thwart the completion of the highway and thereby deliberately harm the City.
The statement of claim does not use the word “conspiracy”. However this is the essence of Hamilton’s claim.
[27] More than 10 years have passed since Hamilton commenced the action. Fault for the delay is with Hamilton. Ms. Evans, counsel for the Defendants, states that her clients are greatly concerned with the cloud that hangs over their professional reputations with the very damaging allegations that have been made against them in this lawsuit. They want to get it on for trial to clear their names. I accept this.
[28] Attached hereto and marked Exhibit 2 are the written interrogatories that the Defendants wish to ask of Hamilton.
[29] Ms. Evans states in her factum the following:
Each individual defendant in this case is entitled to know the specific allegations of bad faith or dishonest conduct which the City is making against him or her, in order to defend the claim against him or herself. Despite 10 years of litigation, the Defendants still do not have a clear understanding of the specific allegations of misfeasance being made against each of them, and the precise basis for those allegations. While the City has made allegations against the Defendants globally, those global allegations do not adequately let each individual know what specific allegations are being made as against him or her.
The Defendants’ purpose in proposing to commence the examination for discovery of the City by written interrogatories is to obtain details of the specific allegations of bad faith conduct being made against each individual defendant. The written interrogatories are organized in a practical manner with reference to specific key documents in order to elicit the City’s specific allegations, and the purported evidence to support such allegations, against each defendant.
The written interrogatories are not intended to address all of the issues on which the Defendants must examine the City for discovery. Oral discovery will be necessary on some issues, including those relating to the City’s own conduct, causation and damages.
[30] The “Report of the Task Force on the Discovery Process in Ontario” issued in November, 2003 stated the following:
Where parties cannot agree, any party may request the court to order both forms of discovery, so long as the court is satisfied that (a) examined parties will not be subjected to duplicative questions and (b) discovery will be conducted cost-effectively. To ensure compliance with these conditions, it is recommended that a provision be added authorizing the court on a party’s request to impose sanctions where the second examination duplicates questions previously asked, or the examination is not being conducted cost-effectively. The Task Force recommends the development of best practices to support this reform. It is anticipated that best practices will lead to a consensus on when to use written discovery and how to craft questions and answers. As standard requests and responses that now occur between many competent practitioners become routine, it is hoped that the need for court orders will diminish.
Recommendations:
Amend rule 31.02(1) to allow both oral and written discovery on parties’consent, or by court order, provided that there will not be duplication andthat discovery will be conducted in a cost-effective manner.
Include a sanction in rule 35.05 to address the situation where written discovery (whether consented to or ordered by the court in addition to oral discovery) proves to be duplicative or is not conducted in a cost-effective manner.
Develop best practices for the use of written questions and answers.
Result
[31] An order will go as follows:
The defendants are granted leave to conduct the examination for discovery of Hamilton by way of both written interrogatories and oral examination. The examinations must be conducted without duplication and in a cost effective manner.
[32] The Defendants may make written submissions on costs within 10 days of receipt of these reasons and Hamilton may respond within 10 days of the receipt of the written submissions of the Defendants.
P.B. Hambly, J.
Released: February 20, 2015
Exhibit 1
Defendants with the Department of Fisheries and Oceans (DFO)
David Anderson, Wayne Hyatt, L. S. Parsons, Raymond Pierce, Steve Burgess, Edwin R. De Bruyn, Cathy Gee, D.V. Gillman, Michaela Huard, Patrice Leblanc, Laud Matos, David Robinson, Jeff Stein, Rob Stevens, Gerry E. Swanson, Lisa Vitols and Wayne Wouters.
a) “What role each defendant is alleged to have had as a public servant in matters pertaining to the Expressway or the City of Hamilton”
(i) The following defendants were associated at relevant times with the Department of Fisheries and Oceans (DFO): David Anderson (June 11, 1997 to August 2, 1999), Wayne Hyatt, L. S. Parsons, Raymond Pierce, Steve Burgess, Edwin R. De Bruyn, Cathy Gee, D.V. Gillman, Michaela Huard, Laud Matos, David Robinson, Jeff Stein, Rob Stevens, Gerry E. Swanson, Lisa Vitols and Wayne Wouters;
(ii) These named defendants were involved in making recommendations/decisions as to whether and how the Canadian Environmental Assessment Act (CEAA) should be applied to the processing by DFO of the City’s application for an authorization, pursuant to s. 35(2) of the Fisheries Act, for Expressway works involving fish habitat;
(iii) Further, these named defendants actively schemed with other defendants to create an alleged scientific precondition for an unprecedented CEAA public panel review of the Expressway.
b) “The deliberate and unlawful conduct each defendant is alleged to have engaged in”
(i) These named defendants deliberately used their public office for a purpose outside the CEAA - to delay and prevent the City completing the Expressway, in that they applied the Canadian Environmental Assessment Act (CEAA) to the Expressway and subsequently insisted on the Expressway being subject to a full CEAA public review panel assessment which would require the City, inter alia, to justify the need for and examine alternatives to the Expressway, despite knowing, or being recklessly indifferent to the following:
a. the Expressway was not a “project” within the meaning of CEAA and therefore CEAA was legally inapplicable to the Expressway;
b. it was contrary to CEAA and the purpose of environmental assessment to apply CEAA to an undertaking that was 60% complete and for which many irrevocable decisions had been made;
c. the Expressway was in any event exempt from the requirement of an environmental assessment pursuant to s. 74(4) of CEAA;
d. the Expressway had previously been subject to a full Ontario Environmental Assessment Act assessment as to the need for and alternatives to the Expressway in which federal departments declined to comment or participate;
e. a 99-day formal hearing process before the Ontario Joint Board (Ontario Municipal Board and Environmental Assessment Board) during 1985-86 considered and approved the adequacy of the environmental assessment; again, federal departments declined to participate; this process, and a subsequent unsuccessful Cabinet appeal and judicial review, resulted in the approval becoming final, and construction commenced in June 1990;
f. as of 1999, when these defendants determined to apply CEAA to the Expressway, it was 60% complete, approximately $200 million of public monies had already been expended for property acquisition and construction; 97 buildings on the right of way had been demolished for its construction; and the completion of the Expressway had long been legally approved as a key infrastructure component of the official planning and development policies of the City and the Province of Ontario.
(ii) Further, in order to frustrate the City’s completion of the Expressway, these named defendants used their office for an improper purpose:
a. despite knowing that migratory bird specialists from the Canadian Wildlife Service/Environment Canada did not find a scientific basis to conclude the Expressway would cause a significant adverse effect on migratory bird preservation and that this statutory pre-condition for establishing a CEAA review panel process was absent, these named defendants, with no expertise in migratory birds, schemed with other defendants who also lacked any such expertise, to formulate a contrary opinion in order to ensure the Expressway was subjected to a full CEAA panel review;
b. these named defendants also acted to have the Expressway subject to a panel review based on “public concern”, despite knowing that such concern was directed at the need for and alternatives to the Expressway, matters they knew constitutionally were provincial and local concerns, not legitimate federal issues.
c) “If a breach of statute is alleged with respect to any of the defendants, the statutory provisions that were breached, when and how”
(i) No breach of statute in the usually understood meaning of that term is alleged. Rather, it is alleged these named defendants used powers under CEAA that were not theirs to use, in that they attempted to apply CEAA to the Expressway, when CEAA did not apply to the Expressway, with the result that in applying CEAA they were acting unlawfully. They began these unlawful actions in 1998 by opening a DFO file #5250-378 “Red Hill Creek Expressway: North-South Section” and initiating a CEAA screening of the Expressway, even though at that time the City had made no application to DFO under the Fisheries Act. Their illegal actions continued during 1998-1999.
d) “If acting in excess of the powers granted is alleged, what power were granted and which specific activity was in excess of those powers”
(i) These named defendants acted in excess of powers granted under the CEAA in that they had no authority to apply CEAA to the Expressway, but proceeded to do so, knowing of or being recklessly indifferent to their lack of authority to do so and knowing this would harm the City.
e) “The circumstances from which it can be inferred that each defendant acted with malice or in bad faith directed at the City”
(i) These named defendants and other defendants knew the City had a specific program, budget and timetable to obtain final Expressway construction approvals, such as the Fisheries Act authorization, and re-commence construction of the north-south portion of the Expressway in 1998. Prior to pressure from other defendants opposed to the Expressway, these named defendants had not suggested that the City’s timetable was inappropriate or that the processing of the City’s application under the Fisheries Act would lead to the federal government attempting to impose a full reconsideration of the need for the Expressway, including new studies of alternatives;
(ii) These named defendants knew the Expressway was not a “project” as defined by CEAA or were recklessly indifferent as to whether the Expressway was a “project”, being aware that as of 1995 when CEAA took effect the Expressway was 60% complete, that construction of the uncompleted north-south portion had begun in 1990, that the north-south portion was an integral and necessary part of already completed portion, that “irrevocable decisions” had been made prior to 1995 when CEAA took effect and it was therefore too late to apply an environmental assessment planning process;
(iii) These named defendants also knew from the lengthy history of the Expressway that its construction had been “initiated” prior to 1984, knew that s. 74(4) of CEAA contained a grandfathering provision that would in any event exempt the Expressway from CEAA in such circumstances, but they failed to provide the City with the benefit of that exemption, and rather insisted that the City must comply in an unprecedented manner with CEAA;
(iv) These named defendants knew, prior to political interference from other defendants, that if CEAA was to be applied to the Expressway in the context of a Fisheries Act application, it was not appropriate in light of the history of the Expressway and the prior comprehensive provincial environmental assessment, to allow the issue of need for or alternatives to the Expressway to be re-examined in a federal environmental assessment process, and they temporarily acted on that premise. However, after pressure from other defendants these named defendants subsequently used their office to do exactly the opposite – impose a full review of need and alternatives to the Expressway by scheming to provide a “scientific” conclusion it would cause impacts on migratory birds, and to take other measures for the same objective, in order to appease a political constituency opposed to the completion of the Expressway even though knowing it was legally inappropriate and rationally too late for environmental assessment to be applied for that purpose;
(v) these named defendants clearly knew in as early as 1997 that “public concern” regarding the Expressway was in respect of the need for the Expressway, which they knew to be a provincial responsibility. These named defendants, as well as those employed by Environment Canada, were advised by the Department of Justice as early as September, 1997 that because the public concern was “over matters that are entirely provincial”, referral of the matter to a CEAA review panel on that basis was not recommended as, inter alia, “the Province may see the referral as an unjustified intrusion into its jurisdiction”;
(vi) Despite internally acknowledging that there were good policy, statutory and constitutional reasons CEAA did not apply to the Expressway, and despite knowing that application of CEAA to the Expressway so as to subject it to a public review panel was unprecedented and would expose the City to the risk of the project being substantially delayed or not approved, these named defendants nevertheless schemed with defendants from other federal agencies and departments to concoct facts which purported to provide a basis for the continued and unprecedented public review panel examination of the need for and alternatives to the Expressway;
(vii) These named defendants knew that the manipulation they were being asked to undertake to the CEAA process in conjunction with processing the City’s Fisheries Act authorization was highly irregular and totally without precedent, and that it would create an untenable procedure antithetical to the protection and better management of the fisheries resource in Canada, but nevertheless these named defendants determined to not oppose the pressure from other defendants, and agreed to have the CEAA process misused by them, knowing it would damage the City.
f) “How each individual defendant’s actions caused or contributed to the City’s alleged loss”
(i) The effect of the actions of these named defendants to delay and stop completion of the Expressway by unlawfully putting and attempting to put CEAA in play and their further unlawful actions which resulted in the imposition of a full federal panel review process on the Expressway, requiring the City to obtain a declaration that the federal CEAA process was unlawfully applied and constitutionally inapplicable to the Expressway, delayed the City completing construction of the Expressway by approximately five years, causing the City substantial extra construction costs, development penalties, and legal fees.
g) “Which conduct by which defendants was so high-handed and malicious that it should attract an award of punitive damages”
The following are illustrative of such conduct by these named defendants:
(i) High handed and malicious conduct clearly occurred in that these named defendants, who were not migratory bird experts, but rather fisheries biologists, or bureaucrats without any migratory bird expertise, knowingly concocted or approved the concocting of conclusions as to the harm to migratory birds which would result from construction of the Expressway, thereby providing an alleged basis for a referral of the Expressway to a CEAA review panel, with the intent to harm the City in its legitimate objective of completing the Expressway, despite knowing that migratory bird experts employed by the Canadian Wildlife Service/Environment Canada did not agree such harm would occur and had opined there was no valid scientific basis to so conclude;
(ii) These named defendants knew:
a. that the history of the Expressway was such that it could not be considered a “project” subject to CEAA;
b. that it in any event DFO could process the Expressway Fisheries Act authorization without application of a CEAA environmental assessment pursuant to the grandfathering exemption in s. 74(4) of CEAA;
c. that the Department of Justice had advised there was no basis for a panel referral based on public concern in that this was a matter of provincial jurisdiction; and
d. that the City would be harmed and damaged if CEAA was applied in that completion of the Expressway would be delayed or that the Expressway would never be given the requested Fisheries Act authorization.
(iii) High handed and malicious conduct also occurred in so far as these named defendants engaged in targeted malice towards the City’s completion of the Expressway for the purpose of appeasing a minority of public opinion by recommending or acquiescing in the termination of the CEAA screening process which they had commenced without need and alternatives being within the scope of assessment, and then agreed to support a public review panel process that would be essentially concerned with issues of need and alternatives, knowing that the public concern in these areas was not a matter of federal jurisdiction, but rather of provincial and local concern, and that these matters had been considered in 1985 in a 99-day public hearing process in which these federal departments declined to participate;
(iv) These named defendants also knew that the manipulation they undertook of the CEAA process in conjunction with processing the City’s Fisheries Act authorization was highly irregular and totally without precedent, and that it would create an untenable procedure antithetical to the protection and better management of the fisheries resource in Canada, but nevertheless these named defendants determined to not oppose the pressure from other defendants, and agreed to have the CEAA process misused by them, knowing that the objective of the federal defendants was to stop completion of the Expressway in order to appease vocal political position, regardless of the harm and damage to the City;
(v) These named defendants intentionally acted in a fundamentally unfair and highly prejudicial manner towards the City, leading the City to understand no panel review would be established or was warranted for the Expressway, and that need and alternatives would not be considered in applying CEAA, when in fact they were scheming with other defendants to establish and impose a review panel, which required reconsideration of the need for the Expressway, which decision was made without consultation with the City and in respect of which they did not specifically inform the City, but rather announced that the Expressway was being referred to a federal panel review through the issuance of a media release.
Defendants with Environment Canada
Christine Stewart (during the period June 11, 1997 to August 2, 1999), David Anderson (during the period August 3, 1999 though October, 1999), Ian Glen, Mike Cadman, Francois Guimont, Len Good, Mary Komarynsky, Mike Shiomi, Donna Stewart, Paula Caldwell, Rob Dobos, John Fischer, Rosaline Frith, Jonathan Gee, Michael Goffin, Olivier Lalande, Simon Llewellyn, Claire Michaud, John Mills, Tom Muir, Craig Ryan, Michael Shaw, John Struger
a) “What role each defendant is alleged to have had as a public servant in matters pertaining to the Expressway or the City of Hamilton”
(i) The following defendants were associated at relevant times with Environment Canada: Christine Stewart (during the period June 11, 1997 – August 2, 1999) David Anderson (during the period August 3, 1999 though October, 1999), Ian Glen, Mike Cadman, Francois Guimont, Len Good, Mary Komarynsky, Mike Shiomi, Donna Stewart, Paula Caldwell, Rob Dobos, John Fischer, Rosaline Frith, Jonathan Gee, Michael Goffin, Olivier Lalande, Simon Llewellyn, Claire Michaud, John Mills, Tom Muir, Craig Ryan, Michael Shaw, John Struger;
(ii) These named defendants attempted to prevent completion of the Expressway, by taking all possible steps to have the need for and alternatives to the Expressway, as well as a virtually unlimited range of collateral issues studied and reviewed by a federally appointed CEAA review panel, with the objective of positioning themselves and relevant federal Ministers to ensure that through these processes required federal approvals for the Expressway would not be granted.
b) “The deliberate and unlawful conduct each defendant is alleged to have engaged in”
(i) These named defendants deliberately mis-used their public office by taking or approving actions in connection with the processing of the Expressway under CEAA in order to prevent the City completing the Expressway, despite knowing, or being recklessly indifferent to the following:
a. the Expressway was not a “project” within the meaning of CEAA and therefore CEAA was legally inapplicable to the Expressway;
b. it was contrary to CEAA and the purpose of environmental assessment to apply CEAA to an undertaking that was 60% complete and for which many irrevocable decision had been made;
c. the Expressway was in any event exempt from the requirement of an environmental assessment pursuant to s. 74(4) of CEAA;
d. the Expressway had previously been subject to a full Ontario Environmental Assessment Act assessment as to the need for and alternatives to the Expressway in which Environment Canada specifically declined to comment or participate;
e. a 99-day formal hearing process before the Ontario Joint Board (Ontario Municipal Board and Environmental Assessment Board) during 1985-86 considered and approved the adequacy of the environmental assessment; again, federal departments declined to participate; this process, and a subsequent unsuccessful cabinet appeal and judicial review, resulted in the approval becoming final, and construction commenced in June 1990.
(ii) These named defendants knew when they determined to apply CEAA to the Expressway, it was 60% complete, approximately $200 million of public monies had already been expended for property acquisition and construction; 97 buildings on the right of way had been demolished for its construction; and the completion of the Expressway had long been legally approved as a key infrastructure component of the official planning and development policies of the City and the Province of Ontario;
(iii) These named defendants took or approved actions to use CEAA to stop completion of the Expressway to advance the opposition of the Environment Minister and/or Minister Copps to completion of the Expressway, as well as their personal opposition and that of groups outside government opposed to the Expressway, of which in some cases they were members, thereby causing foreseeable damage to the City;
(iv) These named defendants, being upset with the limited scope of assessment that DFO had initially proposed under CEAA for the Expressway, determined to manipulate the CEAA process so that they and the Environment Minister, and not DFO, would control the CEAA process, and find a means to justify stopping completion of the Expressway. This was to be accomplished, inter alia, by the unprecedented device of a federally appointed public review panel for a municipal project, the panel members being selected and appointed with the advice and consent of these named defendants, and without any consultation with the City or the Government of Ontario, using unprecedented terms of reference requiring the City to undertake a vast array of new and virtually limitless studies, and ultimately reviewing and questioning the need for and alternatives to the Expressway, even though these named defendants well knew that such issues had already been the subject of a 99-day public hearing under the Ontario Environmental Assessment Act in which Environment Canada refused to participate, and knowing or being recklessly indifferent to the fact that the Expressway was not subject to federal environmental assessment and was in any event exempt from CEAA;
(iii) These named defendants also actively worked to impose a CEAA public review panel on the Expressway despite knowing, or being wilfully blind to the fact that, they lacked a statutory and constitutional basis to cause the matter to reviewed under CEAA, and that the City would be damages in the result;
(iv) These named defendants actively attempted to create evidence to justify the conclusion that the Expressway would cause significant adverse environmental effects on migratory birds, so as to statutorily justify a referral of the Expressway to a panel review; and although they were informed by experts within Environment Canada no such adverse effects could be proven, these named defendants nevertheless concocted or approved documentation purporting to conclude just the opposite and continued to advocate. approve and take measures so that the Expressway would be reviewed by a federal panel whose members were pre-screened by them to ensure their sympathy to the position held by these defendants;
(v) Further, these defendants drafted or approved terms of reference for the panel review requiring the City to carry out studies which would have been scientifically difficult or impossible to execute, which would have required years of effort, which would have inevitably delayed the hearing for some years while the studies were done and critiqued, all for the purpose of delaying and frustrating completion of the Expressway and better positioning the review panel to conclude the Expressway was not needed or justified.
c) “If a breach of statute is alleged with respect to any of the defendants, the statutory provisions that were breached, when and how”
(i) No breach of statute in the usually understood meaning of that term is alleged. Rather, it is alleged these named defendants used powers under CEAA that were not theirs to use, and in any event used their office in an unlawful attempt to impose CEAA on the Expressway, in circumstances where CEAA did not apply to the Expressway. This occurred in 1998 and 1999.
d) “If acting in excess of the powers granted is alleged, what power were granted and which specific activity was in excess of those powers”
These defendants abused their office by purporting to apply CEAA to the Expressway illegally and for an improper purpose, knowing of or being recklessly indifferent to their lack of authority to do so and that this would cause damage to the City. They did so:
(i) by purporting to apply the CEAA to an undertaking which was not a “project” subject to CEAA;
(ii) by attempting to apply the CEAA to an undertaking which was grandfathered from CEAA pursuant to CEAA s. 74(4);
(iii) because they made strenuous efforts to ensure the Expressway completion was reviewed by a CEAA review panel, despite knowing that the scientific precondition for a public review panel did not exist based on alleged harm to migratory birds, and despite knowing that the alternative basis for a public review panel, public concern, was not a constitutionally valid basis to found a federal review of the need for and alternatives to the Expressway, matters they knew were of provincial and local concern;
(iv) by asserting, when they knew there was no credible or statutory basis for such assertions, that Environment Canada was a Responsible Authority under CEAA for the Expressway, that Environment Canada was entitled to review and approve proposed terms of reference for a CEAA review panel of the Expressway; and to approve the members of the review panel, so that these named defendants and their Minister would have the ability to ensure that the Expressway was not completed.
e) “The circumstances from which it can be inferred that each defendant acted with malice or in bad faith directed at the City”
(i) These named defendants reached conclusions and initiated and approved actions to ensure a panel review of the Expressway occurred based on alleged harm which they speculated would be caused by the Expressway to migratory birds, despite knowing such conclusions were scientifically unwarranted and indeed contrary to advice of their own scientific experts in migratory birds;
(ii) These named defendants knew that their actions to refer the Expressway to a review panel were beyond their legal and constitutional authority but they nevertheless took such action in order to imperil or stop construction of the Expressway. Alternatively, they were recklessly indifferent to such illegality. They so acted to advance opposition by the Environment Minister and/or Minister Copps to completion of the Expressway, to advance their personal opposition to the completion of the Expressway, to assist groups outside government opposing the Expressway of which in some cases they were members, and therefore mis-used their office to damage the City;
(iii) These named defendants knew the Expressway was not a “project” subject to CEAA or were recklessly indifferent to that fact, in that they knew it was 60% complete as of 1995, that “irrevocable decisions” had been made prior to 1995 when CEAA took effect and it was therefore too late to apply an environmental assessment planning process;
(iv) These named defendants failed to acknowledge that, if the Expressway was a project to which CEAA did apply, the Expressway was nevertheless exempt from environmental assessment, pursuant to the grandfathering provision in s. 74(4) of CEAA;
(v) The further circumstances set out above in response to demand for particulars (b) and (d) in respect of these named defendants.
f) “how each individual defendant’s actions caused or contributed to the City’s alleged loss”
(i) The effect of the actions of these named defendants to delay and stop completion of the Expressway by unlawfully putting and attempting to put CEAA in play and their further unlawful actions which resulted in the imposition of a full federal panel review process on the Expressway, requiring the City to obtain a declaration that the federal CEAA process was unlawfully applied and constitutionally inapplicable to the Expressway, delayed the City completing construction of the Expressway by approximately five years, causing the City substantial extra construction costs, development penalties, and legal fees.
g) “Which conduct by which defendants was so high-handed and malicious that it should attract an award of punitive damages”
The following are illustrative of such conduct by these named defendants:
(i) High handed and malicious conduct clearly occurred in that these named defendants, who were not migratory bird experts, concocted or approved the concocting of conclusions as to the harm to migratory birds which would result from construction of the Expressway, with the intent to harm the City in its legitimate objective of completing the Expressway, thereby providing an alleged basis for a referral of the Expressway to a CEAA review panel, despite knowing that migratory bird experts within the Canadian Wildlife Service/Environment Canada had determined there was no valid scientific basis to so conclude;
(ii) These named defendants acted in a fundamentally unfair and misleading manner towards the City, leading the City to understand it could meet its Expressway construction timetable when in fact they were scheming with other defendants to establish and impose a review panel to review the need for and alternatives to the Expressway, which decision was made without consultation with the City and in respect of which they informed the City through the issuance of a media release;
(iii) High handed and malicious conduct also occurred in so far as these named defendants schemed to ensure that the Expressway was subjected to the most rigorous federal form of environmental assessment which would have re-examined the need for and alternatives to the Expressway:
a. by insisting, contrary to their own legal advisors and to the derision of some other defendants in the Canadian Environmental Assessment Agency, that Environment Canada was a CEAA regulatory authority for the Expressway based on the need to relocate a Red Hill Creek water gauge;
b. despite knowing the Expressway was 60% completed, that it had been previously subjected to a comprehensive environmental assessment and 99-day public hearing process in which Environment Canada was invited but declined to participate;
c. despite knowing that subjecting the Expressway to a further environmental assessment where the undertaking was 60% complete was contrary to environmental assessment principles and s. 11 of the CEAA;
d. because they were personally opposed to the Expressway and were seeking to achieve their own personal objectives and that of persons and groups opposing the Expressway with whom they sympathized; or
e. because they sought to appease a minority of public opinion opposed to the Expressway with whom they sympathized by terminating a scoped CEAA screening process which had initially commenced without need and alternatives being included and took steps to ensure it was converted to a public review panel process which would include need and alternatives, knowing that the public concern in these areas was not a matter of federal jurisdiction, but rather or provincial and local concern, and that these matters had been considered in 1985 in a 99 day public hearing process in which Environment Canada declined to participate.
Defendants with the Canadian Environmental Assessment Agency
Paul Bernier, Jonathan Gee, Sid Gershberg, Janice Kostash, Brad Parker, Guy Riverin, Nathalie Seguin and Bruce Young
a) “What role each defendant is alleged to have had as a public servant in matters pertaining to the Expressway or the City of Hamilton”
(i) The following defendants were employed at relevant times by the Canadian Environmental Assessment Agency: Paul Bernier, Jonathan Gee, Sid Gershberg, Janice Kostash, Brad Parker, Guy Riverin, Nathalie Seguin and Bruce Young;
(ii) These named defendants provided advice to the Environment Minister, the Fisheries Minister and to other defendants regarding the application of CEAA to the Expressway, and actively participated in, recommended and approved actions which resulted in CEAA being applied to the Expressway, including its referral to a federal review panel and the establishment of terms of reference for the review panel which would have reviewed the need for and alternatives to the Expressway.
b) “The deliberate and unlawful conduct each defendant is alleged to have engaged in”
(i) These named defendants deliberately and unlawfully used their public office to harm the City insofar as they advised, agreed to and/or actively took part in the unprecedented application of CEAA in processing the City’s Fisheries Act authorization so that the approval and completion of the Expressway could be denied, or at least imperilled, through the CEAA process, knowing, or being recklessly indifferent to the fact that, the Expressway was not subject to federal environmental assessment and was in any event exempt from CEAA; that it was too late to apply CEAA having regard to its purpose as an environmental assessment planning process, and the provisions of s. 11 of CEAA, in that the Expressway was 60% complete and that “irrevocable decisions” had been made;
(ii) These named defendants also actively worked with other defendants to find a means to justify imposing a CEAA public review panel on the Expressway and worked to establish and initiate that panel process despite knowing that there were no bona fide statutory or constitutional grounds for such a referral;
(iii) These named defendants elected to regard Environment Canada as a “responsible authority” under CEAA, thereby enabling Environment Canada to seek referral of the Expressway to a review panel and be consulted by these named defendants with respect to the members of the review panel and its terms of reference, despite these named defendants knowing there was no bona fide basis for Environment Canada to be a responsible authority with respect to the Expressway;
(iv) Despite knowing there was no valid statutory or constitutional basis for the application of CEAA to the Expressway, these named defendants did everything possible to advocate, facilitate and approve the application of CEAA to the Expressway and establish an unprecedented procedure for reviewing the need for and alternatives to the Expressway, with the objective of carrying out the political objectives of the Minister of Environment and Minister Copps;
(v) These named defendants acted in a fundamentally unfair manner towards the City, leading the City to understand no panel review would be established or was warranted for the Expressway, or that if one were established it would not consider need and alternatives,when in fact they were scheming with other defendants to establish and impose a review panel, that included need and alternatives, which they informed the City about through the issuance of a media release.
b) “If a breach of statute is alleged with respect to any of the defendants, the statutory provisions that were breached, when and how”
(i) No breach of statute in the usually understood meaning of that term is alleged. Rather, it is alleged these named defendants used powers under CEAA that were not theirs to use, and in any event used their office in an unlawful attempt to impose CEAA on the Expressway, in circumstances where CEAA did not apply to the Expressway, knowing they had no statutory or constitutional basis for their actions, and knowing this would damage the City. This occurred in 1998 and 1999.
d) “If acting in excess of the powers granted is alleged, what power were granted and which specific activity was in excess of those powers”
(i) These named defendants knowingly or recklessly acted contrary to CEAA in that they:
a. disregarded the premise of CEAA as an environmental assessment planning process by attempting to impose an environmental assessment on an undertaking which was 60% complete and in respect of which irrevocable decision had been made;
b. disregarded the mandate and motto of their own Agency;
c. disregarded the statutory and constitutional pre-conditions for application of CEAA by purporting to advise that CEAA be applied to an undertaking which was not a “project” subject to CEAA;
d. counselled applying CEAA to an undertaking which they knew was grandfathered from CEAA pursuant to CEAA s. 74(4);
e. advocated and arranged for the appointment of a CEAA review panel to the Expressway despite knowing that the scientific and statutory precondition for a public review panel did not exist based on alleged harm to migratory birds, and that the alternative basis for a public review panel, public concern, was not relevant to federal referral authority, in that the public concern was as to the need for and alternatives to the Expressway, matters they knew were, and are, of provincial and local concern.
e) “The circumstances from which it can be inferred that each defendant acted with malice or in bad faith directed at the City”
(i) These named defendants knew or were recklessly indifferent as to whether the Expressway was a “project” subject to CEAA having regard to the fact it was 60% complete, that “irrevocable decisions” had been made prior to 1995 when CEAA took effect and it was therefore too late to apply an environmental assessment planning process;
(ii) These named defendants were asked by the City to acknowledge, but failed to consider, or fairly consider that, if CEAA did apply to the Expressway, the Expressway was nevertheless exempt from further assessment, pursuant to the grandfathering provision in s. 74(4);
(iii) Despite internally acknowledging that there were good policy, statutory and constitutional reasons why CEAA did not apply to the Expressway, and despite knowing that application of CEAA to the Expressway so as to subject it to a public review panel was unprecedented and would expose the City to the risk of the project being substantially delayed or not approved, and despite being provided with legal advice to this effect both internally and externally, these named defendants nevertheless worked with defendants from other federal agencies and departments to concoct facts or use scientific conclusions which they knew to be concocted and public concern which they knew to be irrelevant to federal jurisdiction as the basis for the unprecedented public review panel examination of the need for and alternatives to the Expressway;
(iv) These named defendants drafted terms of reference for the panel review which were intended to indefinitely delay the City from having a panel hearing in any timely way, by requiring unprecedented new studies regarding a project which was already 60% complete, which would have required the City to go beyond the leading edge of science, and which these defendants knew were manifestly unfair in their requirements, so as to ensure that the City could not fulfil the panel’s terms of reference, thereby imperilling approval of the Expressway by the CEAA panel;
(v) Although the City requested the opportunity to be consulted on the persons to be appointed to the review panel, these defendants refused to do so, and selected persons for appointment to the panel whom they knew would be sympathetic to the objective of the Environment Minister in ensuring CEAA was used to the extent possible to stop or imperil the completion of the Expressway and who would also be prepared to accept the unprecedented demands for new studies as contemplated in the panel’s draft terms of reference, which were drafted or approved by these named defendants;
(vi) These named defendants, although being aware that the Province of Ontario was contributing significantly to the costs of the Expressway, and that this road was within municipal and provincial jurisdiction, refused to consult with the Province of Ontario in considering persons for appointment to the review panel, and in preparing draft terms of reference for the review panel;
(vii) These named defendants knew that the Environment Minister and Minister Copps strongly desired that completion of the Expressway be stopped or at least imperilled, that these Ministers had a strong desire to ensure that the federal CEAA process be used to the fullest extent possible so as to appease project opponents, and these named defendants acted to carry out such political bidding regardless of their knowledge that their actions to impose a federal review panel environmental assessment were wholly unjustified from the perspective of the principles of environmental assessment, were also legally and constitutionally unjustified, and that the City would be damaged.
f) “How each individual defendant’s actions caused or contributed to the City’s alleged loss”
(i) Each of these named defendants actively participated in or agreed to the use of the CEAA in the illegal manner already described;
(ii) The actions of these named defendants delayed the City completing construction of the Expressway by approximately five years, causing the City substantial extra constructions costs, development penalties, and legal fees.
g) “Which conduct by which defendants was so high-handed and malicious that it should attract an award of punitive damages”
The following are illustrative of such conduct by these named defendants:
(i) High handed and malicious conduct clearly occurred in that these named defendants worked with other defendants to concoct conclusions as to the harm to migratory birds which would result from construction of the Expressway, or were aware such conclusion had been concocted, with the intent to harm the City in its legitimate objective of completing the Expressway, thereby providing an alleged basis for a referral of the Expressway to a CEAA review panel despite knowing that scientists from Environment Canada could not confirm such harm would occur and had opined there was no valid scientific basis to so conclude;
(ii) High handed and malicious conduct also occurred in so far as these named defendants engaged in targeted malice towards the City’s completion of the expressway for the purpose of appeasing a minority of public opinion by facilitating rather than advising against the continuation of an environmental assessment process which they knew was too late, constitutionally colourable and scientifically unjustified;
(iii) Such further reasons as are set out in the preceding responses (a) – (g) to these demands for particulars as regards these named defendants.
Exhibit 2
Written Interrogatories for the City
(December 18, 2013)
QUESTIONS RELATING TO THE DEFENDANT:
____________________________
(Please complete these interrogatories for each defendant separately)
PART A –CLAIMS AGAINST THIS DEFENDANT RELATING TO THE APPLICABILITY OF THE CEAA
PREAMBLE: Hamilton’s statement of claim (in paras 27 (a) and (b)) refers to certain findings of the Federal Court to the effect that the Canadian Environmental Assessment Act (the “CEAA”) did not apply to the Red Hill Creek Expressway (the “RHCE”), or to the combination of the RCHE and Lincoln Alexander Parkway (the “LINC”). More specifically,
In paragraph 27 (b), Hamilton refers to a finding of the Federal Court to the effect that the RHCE, or the RHCE combined with the LINC, were “grandfathered from the application of the CEAA pursuant to s. 74(4) in that construction was initiated prior to June 22, 1984.”
In paragraph 27 (a), Hamilton refers to a finding of the Federal Court to the effect that the RCHE, or the RCHE combined with the LINC, “was not a ‘project’ within the meaning of the CEAA”, and that “it was too late to apply CEAA to the Expressway”, for certain reasons.
QUESTIONS:
NO.
QUESTION
A1.
Does Hamilton allege that this particular defendant acted dishonestly or in bad faith in relation to engaging in conduct that was premised on the CEAA being applicable to the RHCE (and that was therefore inconsistent with the eventual ruling of the Federal Court to the effect that the CEAA was not applicable)? If so:
(a) Please provide details of all such conduct (acts or omissions) on the part of this defendant that Hamilton alleges this defendant engaged in dishonestly or in bad faith.
(b) For all such conduct that Hamilton alleges this defendant engaged in dishonestly or in bad faith, please provide full details of all of the facts on which Hamilton relies in alleging dishonesty or bad faith as against this defendant.
(c) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of each such allegation of dishonest or bad faith conduct as against this defendant.
A2.
Does Hamilton allege that, prior to the cited decision of the Federal Court, this particular defendant knew that the RHCE, or the combined RHCE - LINC, was grandfathered from the application of the CEAA pursuant to s. 74(4) because construction was initiated prior to June 22, 1984? If so:
(a) When does Hamilton allege that this defendant first had or obtained such knowledge?
(b) Please also provide full details of all of the facts upon which Hamilton relies in support of its allegations that this defendant had such knowledge, and relating to its allegations as to when such knowledge was allegedly obtained, and please identify what specific documents, and portions of those documents, Hamilton relies upon in support of such allegations against this defendant.
(c) Did Hamilton ever advise this defendant that it was Hamilton’s view that steps taken in relation to the RCHE prior to June 22, 1984 constituted the “initiation” of “construction”? If so, please indicate when Hamilton first communicated such advice to this defendant. Please identify what specific documents, and what portions of those documents, Hamilton says record such advice being communicated, or which Hamilton otherwise relies upon in this regard.
(d) Did Hamilton ever advise this defendant that it was Hamilton’s view that steps taken in relation to the LINC prior to June 22, 1984 constituted the “initiation” of “construction”? If so, please indicate when Hamilton first communicated such advice to this defendant. Please identify what specific documents, and what portions of those documents, Hamilton says record such advice being communicated, or which Hamilton otherwise relies upon in this regard.
(e) Did Hamilton ever advise this defendant that it was Hamilton’s view or position that the RHCE was grandfathered from application of the CEAA pursuant to s. 74(4)? If so, please indicate when Hamilton first communicated this to this defendant. Please identify what specific documents, and what portions of those documents, Hamilton says record such advice being communicated, or which Hamilton otherwise relies upon in this regard.
A3.
Does Hamilton allege that, prior to the cited decision of the Federal Court, this particular defendant knew that the RHCE was not a “project” within the meaning of the CEAA? If so:
(a) When does Hamilton allege that this defendant first had such knowledge?
(b) Please also provide full details of all of the facts upon which Hamilton relies in support of its allegations that this defendant had such knowledge, and relating to its allegations as to when such knowledge was allegedly obtained, and please identify what specific documents, and portions of those documents, Hamilton relies upon in support of such allegations against this defendant.
(c) Did Hamilton ever specifically advise this defendant that the RHCE was not a “project” within the meaning of the CEAA? If so, please indicate when Hamilton first communicated this advice to defendant. Please identify what specific documents, and what portions of those documents, Hamilton says record such advice being communicated, or which Hamilton otherwise relies upon in this regard.
A4.
Does Hamilton allege that any of this defendant’s acts or omissions touching on the question of whether or not the CEAA was applicable to the RHCE, or to the RCHE and LINC, was motivated by targeted malice against Hamilton (as very generally pleaded against all defendants in paragraph 21 of the statement of claim)? If so:
(a) Please provide full details of Hamilton’s allegations of targeted malice on the part of this particular defendant.
(b) Please provide full details of all of the facts on which Hamilton relies in support of its allegations of targeted malice on the part of this defendant, and please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of such allegations of targeted malice as against this defendant.
(c) If Hamilton alleges that this defendant acted for some improper purpose, please specifically advise precisely what Hamilton alleges such improper purpose was.
(d) For greater clarity in this regard,
(i) Please specifically advise, in relation to the general allegations in paragraph 21, whether Hamilton alleges that this defendant’s conduct was for the purpose of, or motivated by, advancing partisan political objectives. If so, please provide full details of all of the facts on which Hamilton relies, and identify what specific documents, and what portions of those documents, Hamilton relies upon.
(ii) Please specifically advise whether Hamilton alleges that this defendant acted for any purpose that included any consideration of personal profit or personal material gain of any kind. If so, please provide full details of all of the facts on which Hamilton relies, and identify what specific documents, and what portions of those documents, Hamilton relies upon.
(iii) Please specifically advise whether Hamilton alleges that this defendant’s conduct was for a purpose unrelated to environmental impacts or concerns pertaining to the RHCE project. If so, please specifically advise what such extraneous purpose is alleged to be. Please provide full details of all of the facts on which Hamilton relies, and identify what specific documents, and what portions of those documents, Hamilton relies upon.
PART B – CLAIMS AGAINST THIS DEFENDANT RELATING TO THE MANNER IN WHICH THE CEAA WAS APPLIED
PREAMBLE: In addition to asserting claims arising out of Federal Court rulings about the inapplicability of the CEAA to the RHCE, the statement of claim (for example, in paragraphs 15, 22 and 27(c)) include claims and complaints about the particular manner in which the CEAA was applied to the RHCE by the defendants.
QUESTIONS
NO.
QUESTION
B1.
Does Hamilton allege that this particular defendant acted dishonestly or in bad faith in relation to any decision made or step taken regarding the manner in which the CEAA was applied to the RCHE? If so, please answer all of the following questions.
B2.
Please refer to Hamilton Production HAM000261 (also produced at AGC-024642), which is a document dated July 31, 1998 entitled “Red Hill Creek Expressway (North-South Section) ECB Analysis Paper”.
(a) Does Hamilton allege that this defendant acted dishonestly or in bad faith in any way in relation to the preparation or presentation of this Analysis Paper (including the research, investigation and analysis of the matters discussed in the Analysis Paper)?
(b) Please provide full details of all such conduct on the part of this defendant that is alleged by Hamilton to have been dishonest or in bad faith;
(c) Please provide full details of all of the facts and information on which Hamilton relies in support of alleging that such conduct was dishonest or in bad faith;
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
(e) Does Hamilton allege that any of the statements contained in this document were false, and if so, does Hamilton allege that this particular defendant knew or believed that any of those statements were false?
(i) Please identify which specific statements in this document Hamilton alleges to be false.
(ii) Please identify which such statements Hamilton alleges this defendant knew or believed to be false.
(iii) Please set out in detail all of the facts and information that Hamilton relies upon in support of its allegations that such statements were false, and that such statements were known or believed by this defendant to be false.
(iv) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B3.
Please refer to Hamilton Production HAM001164, (also produced at AGC-002205, and as Exhibit 59.36 to the affidavit of Christopher Murray sworn September 20, 1999), which is a document entitled “Analysis of Public Concerns for the Red Hill Creek Expressway”.
(a) Does Hamilton allege that this defendant acted dishonestly or in bad faith in any way in relation to the preparation or presentation of this document?
(b) Please provide full details of all such conduct on the part of this defendant that is alleged by Hamilton to have been dishonest or in bad faith;
(c) Please provide full details of all of the facts and information on which Hamilton relies in support of alleging that such conduct was dishonest or in bad faith;
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
(e) Does Hamilton allege that any of the statements contained in this document were false, and if so, does Hamilton allege that this particular defendant knew or believed that any of those statements were false?
(i) Please identify which specific statements in this document Hamilton alleges to be false.
(ii) Please identify which such statements Hamilton alleges this defendant knew or believed to be false.
(iii) Please set out in detail all of the facts and information that Hamilton relies upon in support of its allegations that such statements were false, and that such statements were known or believed by this defendant to be false.
(iv) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B4.
Please refer to Hamilton Production HAM002075 (also produced at AGC-013565 and as Exhibit 59.45 to the affidavit of Christopher Murray sworn September 20, 1999), which is a document dated January 28, 1999 entitled “Department of Fisheries and Oceans – Fish Habitat Management - Red Hill Creek Expressway - Analysis of Public Concerns”.
(a) Does Hamilton allege that this defendant acted dishonestly or in bad faith in any way in relation to the preparation or presentation or of this document?
(b) Please provide full details of all such conduct on the part of this defendant that is alleged by Hamilton to have been dishonest or in bad faith;
(c) Please provide full details of all of the facts and information on which Hamilton relies in support of alleging that such conduct was dishonest or in bad faith;
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
(e) Does Hamilton allege that any of the statements contained in this document were false, and if so, does Hamilton allege that this particular defendant knew or believed that any of those statements were false?
(i) Please identify which specific statements in this document Hamilton alleges to be false.
(ii) Please identify which such statements Hamilton alleges this defendant knew or believed to be false.
(iii) Please set out in detail all of the facts and information that Hamilton relies upon in support of its allegations that such statements were false, and that such statements were known or believed by this defendant to be false.
(iv) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B5.
Please refer to Hamilton Production HAM003619 (also produced at AGC-013501), which is a document dated January 28, 1999 entitled “Red Hill Creek Expressway Environmental Assessment Screening Report Scoping Document”.
(a) Does Hamilton allege that this defendant acted dishonestly or in bad faith in any way in relation to the preparation or issuance of this scoping document?
(b) Please provide full details of all such conduct on the part of this defendant that is alleged by Hamilton to have been dishonest or in bad faith;
(c) Please provide full details of all of the facts and information on which Hamilton relies in support of alleging that such conduct was dishonest or in bad faith;
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
(e) Does Hamilton allege that any of the statements contained in this document were false, and if so, does Hamilton allege that this particular defendant knew or believed that any of those statements were false?
(i) Please identify which specific statements in this document Hamilton alleges to be false.
(ii) Please identify which such statements Hamilton alleges this defendant knew or believed to be false.
(iii) Please set out in detail all of the facts and information that Hamilton relies upon in support of its allegations that such statements were false, and that such statements were known or believed by this defendant to be false.
(iv) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B6.
Please refer to Hamilton Production HAM000315 (also produced at AGC-0013758), which is a letter dated February 4, 1999 from Rosaline Frith of Environment Canada to Nathalie Seguin of the Canadian Environmental assessment Agency.
(a) Does Hamilton allege that this defendant acted dishonestly or in bad faith in any way in relation to the preparation or presentation of this letter (including the formulation of its contents)?
(b) Please provide full details of all such conduct on the part of this defendant that is alleged by Hamilton to have been dishonest or in bad faith;
(c) Please provide full details of all of the facts and information on which Hamilton relies in support of alleging that such conduct was dishonest or in bad faith;
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
(e) Does Hamilton allege that any of the statements contained in this document were false, and if so, does Hamilton allege that this particular defendant knew or believed that any of those statements were false?
(i) Please identify which specific statements in this document Hamilton alleges to be false.
(ii) Please identify which such statements Hamilton alleges this defendant knew or believed to be false.
(iii) Please set out in detail all of the facts and information that Hamilton relies upon in support of its allegations that such statements were false, and that such statements were known or believed by this defendant to be false.
(iv) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B7.
Please refer to Hamilton Production HAM000582 (also produced at AGC-014801, and as Exhibit 59.57 to the affidavit of Christopher Murray sworn September 20, 1999), which is a letter dated April 9, 1999 from John Mills of Environment Canada to Raymond Pierce of Fisheries and Oceans Canada.
(a) Does Hamilton allege that this defendant acted dishonestly or in bad faith in any way in relation to the preparation or presentation of this letter (including the formulation of its contents)?
(b) Please provide full details of all such conduct on the part of this defendant that is alleged by Hamilton to have been dishonest or in bad faith;
(c) Please provide full details of all of the facts and information on which Hamilton relies in support of alleging that such conduct was dishonest or in bad faith;
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
(e) Does Hamilton allege that any of the statements contained in this document were false, and if so, does Hamilton allege that this particular defendant knew or believed that any of those statements were false?
(i) Please identify which specific statements in this document Hamilton alleges to be false.
(ii) Please identify which such statements Hamilton alleges this defendant knew or believed to be false.
(iii) Please set out in detail all of the facts and information that Hamilton relies upon in support of its allegations that such statements were false, and that such statements were known or believed by this defendant to be false.
(iv) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B8.
Please refer to Hamilton Production HAM003254 (also produced at AGC-024745), which is a Canadian Environmental Assessment Agency Memorandum to the Minister dated April 21, 1999.
(a) Does Hamilton allege that this defendant acted dishonestly or in bad faith in any way in relation to the preparation or presentation of this memorandum (including the formulation and presentation of the advice to the Minister set out in the memorandum)?
(b) Please provide full details of all such conduct on the part of this defendant that is alleged by Hamilton to have been dishonest or in bad faith;
(c) Please provide full details of all of the facts and information on which Hamilton relies in support of alleging that such conduct was dishonest or in bad faith;
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
(e) Does Hamilton allege that any of the statements contained in this document were false, and if so, does Hamilton allege that this particular defendant knew or believed that any of those statements were false?
(i) Please identify which specific statements in this document Hamilton alleges to be false.
(ii) Please identify which such statements Hamilton alleges this defendant knew or believed to be false.
(iii) Please set out in detail all of the facts and information that Hamilton relies upon in support of its allegations that such statements were false, and that such statements were known or believed by this defendant to be false.
(iv) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B9.
Please refer to Hamilton Production HAM003750 (also produced at AGC-015155), which is a letter dated April 26, 1999 from Mike Shaw of Environment Canada to Ed DeBruyn and Laud Matos of Fisheries and Oceans Canada.
(a) Does Hamilton allege that this defendant acted dishonestly or in bad faith in any way in relation to the preparation or sending of this letter (including the formulation of its contents)?
(b) Please provide full details of all such conduct on the part of this defendant that is alleged by Hamilton to have been dishonest or in bad faith;
(c) Please provide full details of all of the facts and information on which Hamilton relies in support of alleging that such conduct was dishonest or in bad faith;
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
(e) Does Hamilton allege that any of the statements contained in this document were false, and if so, does Hamilton allege that this particular defendant knew or believed that any of those statements were false?
(i) Please identify which specific statements in this document Hamilton alleges to be false.
(ii) Please identify which such statements Hamilton alleges this defendant knew or believed to be false.
(iii) Please set out in detail all of the facts and information that Hamilton relies upon in support of its allegations that such statements were false, and that such statements were known or believed by this defendant to be false.
(iv) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B10.
Please refer to AGC-015150 (also marked as Exhibit 92 to the cross-examination of Ed Debruyn on August 16, 2000), which is a Fisheries and Oceans Canada Memorandum to the Minister dated April 26, 1999.
(a) Does Hamilton allege that this defendant acted dishonestly or in bad faith in any way in relation to the preparation or presentation of this memorandum (including the formulation and presentation of the recommendations to the Minister set out in the memorandum)?
(b) Please provide full details of all such conduct on the part of this defendant that is alleged by Hamilton to have been dishonest or in bad faith;
(c) Please provide full details of all of the facts and information on which Hamilton relies in support of alleging that such conduct was dishonest or in bad faith;
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
(e) Does Hamilton allege that any of the statements contained in this document were false, and if so, does Hamilton allege that this particular defendant knew or believed that any of those statements were false?
(i) Please identify which specific statements in this document Hamilton alleges to be false.
(ii) Please identify which such statements Hamilton alleges this defendant knew or believed to be false.
(iii) Please set out in detail all of the facts and information that Hamilton relies upon in support of its allegations that such statements were false, and that such statements were known or believed by this defendant to be false.
(iv) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B11.
Please refer to AGC-015351, which is a letter dated May 4, 1999 from the Minister of Fisheries and Oceans Canada to the Minister of Environment.
(a) Does Hamilton allege that this defendant acted dishonestly or in bad faith in any way in relation to the preparation or sending of this letter?
(b) Please provide full details of all such conduct on the part of this defendant that is alleged by Hamilton to have been dishonest or in bad faith;
(c) Please provide full details of all of the facts and information on which Hamilton relies in support of alleging that such conduct was dishonest or in bad faith;
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
(e) Does Hamilton allege that any of the statements contained in this document were false, and if so, does Hamilton allege that this particular defendant knew or believed that any of those statements were false?
(i) Please identify which specific statements in this document Hamilton alleges to be false.
(ii) Please identify which such statements Hamilton alleges this defendant knew or believed to be false.
(iii) Please set out in detail all of the facts and information that Hamilton relies upon in support of its allegations that such statements were false, and that such statements were known or believed by this defendant to be false.
(iv) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B12.
Please refer to AGC-015430, which is a News Release dated May 6, 1999 from the Canadian Environmental Assessment Agency announcing the decision of the Minister of Environment to have the proposed Red Hill Creek project evaluated by an independent environmental assessment review panel.
(a) Does Hamilton allege that this defendant acted dishonestly or in bad faith in any way in relation to the decision of the Minister of Environment to have the proposed Red Hill Creek project evaluated by an independent environmental assessment review panel?
(b) Please provide full details of all such conduct on the part of this defendant that is alleged by Hamilton to have been dishonest or in bad faith;
(c) Please provide full details of all of the facts and information on which Hamilton relies in support of alleging that such conduct was dishonest or in bad faith;
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
(e) Does Hamilton allege that any of the statements contained in this document were false, and if so, does Hamilton allege that this particular defendant knew or believed that any of those statements were false?
(i) Please identify which specific statements in this document Hamilton alleges to be false.
(ii) Please identify which such statements Hamilton alleges this defendant knew or believed to be false.
(iii) Please set out in detail all of the facts and information that Hamilton relies upon in support of its allegations that such statements were false, and that such statements were known or believed by this defendant to be false.
(iv) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B13.
Please refer to Hamilton Production HAM003057 (also produced at AGC-016741, with Appendices at AGC-016735 and AGC-000609), which is a Canadian Environmental Assessment Agency Memorandum to the Minister of Environment dated June 25, 1999.
(a) Does Hamilton allege that this defendant acted dishonestly or in bad faith in any way in relation to the preparation or presentation of this memorandum (including the formulation and presentation of the advice to the Minister set out in the memorandum)?
(b) Please provide full details of all such conduct on the part of this defendant that is alleged by Hamilton to have been dishonest or in bad faith;
(c) Please provide full details of all of the facts and information on which Hamilton relies in support of alleging that such conduct was dishonest or in bad faith;
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
(e) Does Hamilton allege that any of the statements contained in this document were false, and if so, does Hamilton allege that this particular defendant knew or believed that any of those statements were false?
(i) Please identify which specific statements in this document Hamilton alleges to be false.
(ii) Please identify which such statements Hamilton alleges this defendant knew or believed to be false.
(iii) Please set out in detail all of the facts and information that Hamilton relies upon in support of its allegations that such statements were false, and that such statements were known or believed by this defendant to be false.
(iv) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B14.
Please refer to Hamilton Production HAM003121 (also produced at AGC-017004, and as Exhibit 63 to the affidavit of Christopher Murray sworn September 20, 1999), which is a News Release dated July 5, 1999 from the Canadian Environmental Assessment Agency announcing the appointment of Red Hill Creek Review Panel members, and the issuance of final Terms of Reference for the Review Panel.
(a) Does Hamilton allege that this defendant acted dishonestly or in bad faith in any way in relation to the appointment of Red Hill Creek Review Panel members, or the issuance of final Terms of Reference for the Review Panel?
(b) Please provide full details of all such conduct on the part of this defendant that is alleged by Hamilton to have been dishonest or in bad faith;
(c) Please provide full details of all of the facts and information on which Hamilton relies in support of alleging that such conduct was dishonest or in bad faith;
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
(e) Does Hamilton allege that any of the statements contained in this document were false, and if so, does Hamilton allege that this particular defendant knew or believed that any of those statements were false?
(i) Please identify which specific statements in this document Hamilton alleges to be false.
(ii) Please identify which such statements Hamilton alleges this defendant knew or believed to be false.
(iii) Please set out in detail all of the facts and information that Hamilton relies upon in support of its allegations that such statements were false, and that such statements were known or believed by this defendant to be false.
(iv) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B15.
Does Hamilton allege that this defendant acted dishonestly or in bad faith in relation to any other decisions or steps relating to the manner in which the CEAA was applied to the RCHE or the RHCE and LINC? If so:
(a) In respect of what other particular decisions or steps relating to the manner in which the CEAA was applied does Hamilton allege that this particular defendant acted dishonestly or in bad faith?
(b) Please identify, and provide full details of, all acts or omissions this defendant is alleged to have engaged in dishonestly or in bad faith in relation to each such other decision or step.
(c) Please provide all of the facts on which Hamilton relies in support of alleging that such acts or omissions were engaged in by this defendant dishonestly or in bad faith.
(d) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of these allegations.
B16
Does Hamilton, with respect to any allegations that this particular defendant acted in a deliberately unlawful manner, allege that this defendant disregarded or acted contrary to legal advice received by the defendant. If so:
(a) Please identify all deliberately unlawful actions that Hamilton alleges this defendant took contrary to legal advice.
(b) Please detail all of the facts upon which Hamilton relies in support of alleging that such actions were taken contrary to legal advice received by this defendant.
(c) Please identify what documents, and what specific parts of those documents, Hamilton relies upon in support of all such allegations.
B17.
With respect to all of Hamilton’s allegations of dishonesty or bad faith made against this defendant in response to questions B.1-16 above, does Hamilton allege that any of this defendant’s allegedly dishonest or bad faith acts or omissions were caused or motivated by targeted malice (as very generally pleaded against all defendants in paragraph 21 of the statement of claim)? If so:
(a) Please provide full details of what particular acts or omissions Hamilton alleges to have been caused or motivated by targeted malice on the part of this particular defendant,
(b) Please provide full details of all of the facts on which Hamilton relies in support of alleging such targeted malice as against this defendant.
(c) Please identify what specific documents, and what portions of those documents, Hamilton relies upon in support of such allegations of targeted malice on the part of this defendant.
(d) If Hamilton alleges that this defendant acted for some improper purpose, please specifically advise precisely what Hamilton alleges such improper purpose was.
(e) For greater clarity in this regard,
(i) Please specifically advise, in relation to the general allegations in paragraph 21, whether Hamilton alleges that this defendant’s conduct touching upon the manner in which the CEAA was applied was for the purpose of, or motivated by, advancing partisan political objectives. If so, please provide full details all of the facts on which Hamilton relies, and identify what specific documents, and what portions of those documents, Hamilton relies upon.
(ii) Please specifically advise whether Hamilton alleges that this defendant acted for any purpose that included any consideration of personal profit or personal material gain of any kind. If so, please provide full detail all of the facts on which Hamilton relies, and identify what specific documents, and what portions of those documents, Hamilton relies upon.
(iii) Please specifically advise whether Hamilton alleges that this defendant’s conduct in relation to how the CEAA was applied was for a purpose unrelated to environmental impacts or concerns pertaining to the RHCE project. If so, please specifically advise what such extraneous purpose is alleged to be. Please provide full details of all of the facts on which Hamilton relies, and identify what specific documents, and what portions of those documents, Hamilton relies upon.
CITATION: City of Hamilton v. Attorney General et al., 2015 ONSC 1046
COURT FILE NO.: C-383-04
DATE: 2015-02-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
City of Hamilton
Plaintiff
Attorney General of Canada, Christine Stewart, David Anderson Herb Dhaliwal, Sheila Copps, Nancy Adams, Paul Bernier, W. Bill Bien, Edwin R. De Bruyn, Steve Burgess, Mike Cadman, Paula Caldwell, Robert Connelly, Rob Dobos, Margit Doneit, John Fischer, Rosaline Frith, Nicole Gagnier, Denise Gibbs, Cathy Gee, Jonathan H. Gee, Sid Gershberg, D. V. Gillman, Carole Giroux, Ian Glen, Michael Goffin, Francois Guimont, Len Good, Keith Grady, Barbara Hennessy, Michaela Huard, Wayne Hyatt, Louise Knox, Mary Komarynsky, Janice Kostash, Olivier Lalande, Deb Lauder, Patrice Leblanc, Sharon Leonhard, Simon Llewellyn, Nancy Maguire, Laud Matos, Claire Michaud, John Mills, Tom Muir, Brad Parker, L.S. Parsons, Raymond Pierce, Richard Pratt, Ulana Perovic, Kim Ray, David Robinson, Michael Rayner, Guy Riverin, David Robinson, Craig Ryan, Nathalie Seguin, Michael Shaw, Ron Shimizu, Mike Shiomi, Jeff Stein, Rob Stevens, Donna Stewart, John Struger, Gerry E. Swanson, Lucie Tessier, Lisa Vitpls, Wayne Wouters, Bruce Young
Defendants
REASONS FOR JUDGMENT
P.B. Hambly, J.
Released: February 20, 2015