CITATION: Toronto Star v Attorney General of Ontario, 2017 ONSC 7559

COURT FILE NO.: CV-17-569061

DATE: 20171218

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Toronto Star Newspapers Ltd., Applicant

– AND –

The Attorney General of Ontario and The Workplace Safety and Insurance Appeals Tribunal, Respondents

BEFORE: EM Morgan J.

COUNSEL: Paul Schabas, Iris Fischer and Jessica Lam, for the Applicant

Daniel Guttman and Yashoda Ranganathan, for the Attorney General of Ontario

HEARD: December 15, 2017

MOTION to strike affidavit evidence

[1] The Applicant moves to strike out a portion of one of the affidavits that the Attorney General of Ontario has filed in its responding record. Counsel for the Applicant submits that paragraphs 25-56 of the affidavit of Deirdre McDade affirmed October 2, 2017 (the “McDade Affidavit”) contain information that is irrelevant to the issues in the Application and that will tend to prejudice the Applicant and potentially delay the proceedings.

[2] The Application involves a Charter challenge to the application of the Freedom of Information and Protection of Privacy Act (“FIPPA”) to certain quasi-judicial tribunals in Ontario. It challenges the restrictions imposed on public and media access to documents filed in proceedings in those tribunals, and raises issues of freedom of expression, freedom of the press, and the principle of open courts.

[3] The McDade Affidavit has been included in the record as part of the Attorney General’s evidence of the policies, rules, and rationale for the rules of the tribunals in issue. It does this in respect of two specific tribunals – the Criminal Injuries Compensation Board (“CICB”) and the Social Benefits Tribunal (“SBT”) – with which Ms. McDade works or has worked in the past. Ms. McDade is a lawyer who has detailed knowledge about the procedures and the types of information and documents filed in the proceedings of both of these bodies.

[4] The first half of the McDade Affidavit deals with the CICB, its procedures, and the kind of information filed by and potential chill on parties to CIBD proceedings; it is not the subject of this motion. The second half of the McDade Affidavit deals with the SBT, its procedures, and the kind of information filed by and potential chill on parties to SBT proceedings; it is the subject of this motion to strike.

[5] The CICB is listed in Schedule “A” to the Notice of Application issued February 6, 2017. The SBT is not listed in Schedule “A”.

[6] For ease of reference, I will set out in full the first two paragraphs of the relief sought in the Notice of Application:

(a) A declaration that the application of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”) to quasi-judicial tribunals, including those listed n Schedule “A” to this Notice of Application, through their inclusion in the Schedule of Regulation 460, R.R.O. 1990 to FIPPA (the “General Regulation”), is unconstitutional as an unjustifiable infringement on s. 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) and therefore of no force and effect.

(b) A declaration that the open court principle applies to quasi-judicial tribunals, that their proceedings are presumptively open to the public and that their records, including pleadings, exhibits, legal briefs and all other documents on which adjudication is based (the “adjudicative documents”) are public in the same way as court records are public.

[7] One should be cautious on a preliminary motion where one side seeks to strike out evidence tendered by the other in advance of the substantive hearing. As Swinton J. pointed out in Hanna v Attorney General for Ontario, 2010 ONSC 4058, at para 7, “Courts are generally reluctant to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits.” Accordingly, “[i]n case of doubt concerning the admissibility of affidavit material filed, it should not be struck”: Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316, at para 50.

[8] This reluctance, however, does not translate into a blanket rule. Where evidence is plainly inadmissible, it can be prejudicial to the hearing on the merits to leave it in the record. In terms of fairness to the party that challenges the inadmissible evidence, this court has held that, “A party should not be put to the needless expenditure of time and resources in responding to evidence which can have no impact on the outcome of the proceeding”: Chopik v Mitsubishi Paper Mills Ltd. (2002), 26 CPC (5th) 104, at para 26 (SCJ). Moreover, as Harvison-Young J. stated in Lockridge, supra, at para 50, “Defining the record appropriately in advance of the hearing enhances the panel’s ability to determine the merits, and is thus in the interests of justice.”

[9] The scope of the Application, and in particular the number of impugned administrative tribunals, was the subject of some discussion at the initial case conference in this matter. Counsel for the Attorney General was especially concerned about the potentially unwieldy scope of the Application, as there are apparently some 300 tribunals in Ontario to which the Application could potentially apply. Although there are 15 tribunals listed in Schedule “A” to the Notice of Application – actually, there are 16 entries on Schedule “A”, but the Ontario Municipal Board is such a popular target that it was listed twice! – the list is phrased in a way which makes it more a set of examples than an exhaustive list. Both parties were anxious to curtail this expansive tendency. Compiling an evidentiary record that addresses the procedures and policies of several hundred tribunals would create a piece of litigation that threatened to spiral out of control.

[10] On May 24, 2017, I issued a short endorsement that sought to encapsulate the discussions at the case conference. The final two paragraphs of that endorsement provide:

[3] Paragraph 1(a) of the Notice of Application seeks an order in respect of ‘quasi-judicial tribunals, including those listed in Schedule ‘A’ to this Notice of Application, through their inclusion in the Schedule of Regulation 460, R.R.O. 990 to FIPPA…’ [emphasis added]. There are 16 specific tribunals listed in Schedule ‘A’, but the language of para 1(a) suggests that any similarly situated tribunal included in the relevant regulation could be subject to this constitutional challenge. Counsel for MAG advises that there are potentially several hundred such tribunals, which would make this litigation unwieldy.

[4] Counsel for the Star and counsel for MAG have therefore agreed that the subject matter of the Application will be limited to the 16 tribunals named in Schedule ‘A’ to the Notice of Application. Whether an eventual ruling in this Application is applicable to any other tribunal in Ontario will be left to be determined at another time, if and when the specific question arises.

[11] The point of this endorsement, of course, was to reel in an Application that held out the prospect of becoming an unruly beast. Instead of being compelled to compile an endlessly expansive record pertaining to all of Ontario’s quasi-judicial tribunals, the parties would limit the evidentiary record to the policies, procedures, and impact of the 15 tribunals found in Schedule “A”.

[12] Counsel for the Applicant submits that by including the second half of the McDade Affidavit, the Attorney General has done precisely what it did not want done – it has expanded the evidentiary record to a tribunal not included in Schedule “A”. While Applicant’s counsel does not doubt Ms. McDade’s familiarity with the SBT, he says that by including some 30 paragraphs on the operation of the SBT the Attorney General has compelled the Applicant to expend its time and resources compiling reply evidence about the SBT. That, he contends, is prejudicial to the Applicant and is contrary to my May 24, 2017 endorsement.

[13] Counsel for the Attorney General takes issue with this view. He submits that my limitation of the Application to the listed tribunals applied to the relief sought in paragraph 1(a) of the Notice of Application, but not to that sought in paragraph 1(b). In other words, he says that the challenged portion of the McDade Affidavit is not meant to address the application of FIPPA to the SBT, but rather is only meant to address the application of the open courts principle to the SBT. He points out that para 3 of my endorsement mentions only para 1(a) of the Notice and makes no mention of para 1(b).

[14] With all due respect, the AG’s counsel misreads the May 24, 2017 endorsement. I do specifically mention para 1(a) of the Notice of Application, but that is for identification purposes. It is in para 1(a) that the Notice itself references Schedule “A”. The operative limitation in the endorsement is not, however, restricted to the relief sought in para 1(a) of the Notice. Paragraph 4 of the endorsement states, without limitation, that “the subject matter of the Application will be limited to the 16 tribunals named in Schedule ‘A’ to the Notice of Application.” That applies to the entire subject matter of the Application, not just the para 1(a) part.

[15] No other reading of the May 24th endorsement accomplishes the stated task of streamlining the Application. The parties were not anxious to limit the evidence going to the s. 2(b) challenge contained in para 1(a) of the Notice of Application but anxious to expand the evidence going to the “open courts” challenge contained in para 1(b) of the Notice. They were anxious to limit the entire evidentiary record to the Schedule “A” tribunals, regardless of the constitutional heading under which any particular one was being challenged. The limitation of this Application to the Schedule “A” tribunals applies to the entire Application.

[16] That said, parties are always free to argue by analogy. It may sometimes be appropriate to include some information about tribunals not listed in Schedule “A” in order to highlight something about tribunals that are so listed. As an example, the Attorney General has included in its responding record some affidavit material describing the public accessibility of tribunal proceedings in New York and the resulting practice there of blacklisting tenants. Obviously, New York procedures are not challenged in this Application, but the New York evidence is interesting as a comparative and potentially analogous situation. In that sense, material pertaining to other tribunals not in issue here can be relevant to the arguments being put forward.

[17] That, however, is not the sense that the impugned portion of the McDade Affidavit is presented. Ms. McDade provides evidence about the SBT in equal detail to the evidence she provides about the CICB. Indeed, the two portions of her affidavit are of equivalent length, despite the fact that the CICB is a listed tribunal and the SBT is not. She does not make some brief mention of the SBT as an analogous institution for which the details are less important than the general picture. She presents information about the SBT in a way that demands a response by the opposing side, as if it is the actual subject matter of the Application. That is what the parties are precluded from doing to each other in the May 24th endorsement.

[18] In my view, the parties were wise in seeking to define and contain the subject matter of this Application at the outset. They should not now be building a record that goes beyond the parameters set at the initial case conference and in the May 24, 2017 endorsement.

[19] Paragraphs 25-56 of the McDade Affidavit are hereby struck out, without leave to amend.

Morgan J.

Date: December 18, 2017