Court File and Parties

COURT FILE NO.: CV-16-4669-00 DATE: 2018-06-25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2386240 ONTARIO INC., O/A AL-OMDA LOUNGE, HABIBI LOUNGE, FUSION LOUNGE, SAIMA ROGINA INC., O/A EL FISHAWY, 84921231 CANADA INC., O/A MAZAJ LOUNGE and SHISALICIOUS CAFÉ Applicants

V.

THE CITY OF MISSISSAUGA and THE REGIONAL MUNICIPALITY OF PEEL Respondents

BEFORE: Regional Senior Justice Peter A. Daley

COUNSEL: R.P. Zigler, for the Applicants B.H. Kussner and S.R. Rouleau, for the Respondents

HEARD: January 17, 2018

Evidentiary Ruling on Applications

[1] The applicants seek a declaration that part of a by-law enacted by the respondent The Regional Municipality of Peel (the “Region”) banning the use of waterpipes is invalid and as such those provisions of the by-law should be quashed.

[2] At the opening of his submissions, counsel for the applicants moved for an order granting leave to the applicants to file the supplementary affidavit of Nicole Peart sworn November 23, 2017 for consideration on this application.

[3] Counsel for the respondents opposed the motion on the basis that leave should not be granted pursuant to Rule 39.02 (2) of the Rules of Civil Procedure, given that the affidavit was served after counsel for the applicants had conducted cross-examinations on affidavit material filed by the respondents.

[4] After considering the affidavit of Nicole Peart and the submissions of counsel, I dismissed the applicants’ motion seeking leave to file the affidavit, with detailed reasons to follow.

[5] These are my reasons for dismissing the applicants’ motion.

[6] The affidavit submitted on the applicants motion was executed by counsel’s legal assistant and based on advice given to her by counsel.

[7] Attached to the affidavit as an exhibit is a letter from Kirsten Franz of the office of the City Solicitor for the City of Toronto, dated June 2, 2016, addressed to R.P. Zigler, counsel for the applicants in this matter. There is no evidence as to whether or not the author of the letter is a solicitor or an employee of the City of Toronto.

[8] Ms. Peart’s affidavit is very brief and does not offer any explanation as to why this letter from the City Solicitor for the City of Toronto was not submitted in evidence on behalf of the applicants in this application until after counsel for the applicants completed cross-examination of the respondents’ deponents, who filed affidavits in opposition to the application.

[9] The affidavit simply has the referenced letter attached as an exhibit and Ms. Peart states that she was advised by Mr. Zigler that the letter was provided to him by the City of Toronto’s solicitors in answer to undertakings from examinations in legal proceedings that had challenged the validity of its waterpipe by-law.

[10] The deponent further states that the said letter had formed part of the evidentiary record before the Ontario Court of Appeal when Mr. Zigler, as counsel for the appellants argued an appeal from the decision of Goldstein, J., where he held that a similar by-law to that at stake on this application, was valid and as such the application to quash the by-law was dismissed. Goldstein, J.’s decision was upheld by the Court of Appeal in its decision of 2326169 Ontario Inc. (Farouz Sheesha Cafe) v. Toronto (City), 2017 ONCA 484.

[11] The witness Peart also states that she was advised by Mr. Ziegler that the decision of the Court of Appeal was rendered after cross-examinations had been completed in this application.

[12] No evidence whatsoever was offered by the applicants as to the intended purpose of the Peart affidavit or its relevance to on this application. Counsel simply submitted that the affidavit was relevant, although not addressed or referenced by the Court of Appeal, as the letter from the office of the City Solicitor for the City of Toronto would demonstrate that the scope of the impugned by-law in the Toronto application was narrower than the impugned by-law on this application.

[13] Again, although it is not contained in any evidence before the court, counsel for the applicants advised that in the course of cross examining the respondents’ witnesses on their affidavits the witnesses were not questioned with respect to the letter. Thus, the subject letter is an entirely new piece of evidence never having been before introduced in evidence nor referred to in cross-examination of the respondents’ witnesses.

[14] Counsel for the applicants argued that leave should be granted for the filing of this affidavit and the letter attached for the unique purpose of distinguishing the case considered by Goldstein, J. and the Court of Appeal from the case before this court.

[15] It was urged by counsel for the applicants that leave should be granted for the introduction of the affidavit on two distinct grounds, namely on the basis that the letter attached to the Peart affidavit was a “public document” in accordance with s. 29 of the Evidence Act, RSO 1990, c. E. 23 which provides as follows:

Public or official documents

29 Where the original record could be received in evidence, a copy of an official or public document in Ontario, purporting to be certified under the hand of the proper officer, or the person in whose custody such official or public document is placed, or of a document, by-law, rule, regulation or proceeding, or of an entry in a register or other book of a corporation, created by charter or statute in Ontario, purporting to be certified under the seal of the corporation and the hand of the presiding officer or secretary thereof, is receivable in evidence without proof of the seal of the corporation, or of the signature or of the official character of the person or persons appearing to have signed the same, and without further proof thereof. R.S.O. 1990, c. E.23, s. 29.

[16] The second argument for the admission of this affidavit evidence was simply under the terms of Rule 39.02 (2) and the jurisprudence thereunder.

[17] Counsel for the applicants offered no authority on what constitutes a “public document” under this section, let alone case authorities having regard to the document itself, namely a letter to counsel answering undertakings from examinations or cross-examinations on affidavit material. It was simply urged by counsel for the applicants that as the letter in question formed part of the evidentiary record submitted to the Court of Appeal the document then became a “public document”. I disagree with this submission.

[18] At common law, a “public document” has been held to mean a document that is made for the purpose of the public making use of it, and being able to refer to it: Sturla v. Freccia (1880), 5 App. Cas. 623 at 643 (H.L.).

[19] Clearly the letter in question is not a public document at common-law as there was no intention that this letter would be made use of by the public, let alone for the purpose of the public being able to refer to it.

[20] In the Ontario Court of Appeal decision R. v. Kaipianen, [1954] O.R. 43 the court having reviewed leading English authorities as to what constituted a public document concluded that there are four conditions that must be present for a public document to be admissible without proof, namely:

(1) there must be a judicial or semi-judicial inquiry; (2) the inquiry must be with the object that the report be made public; (3) the report must be open to public inspection or an inference to this effect should be drawn from the circumstances; and (4) statements in a public document must relate to matters for which it was the duty of the public officer holding the inquiry to inquire into and report on: The Law of Evidence in Canada, 4th Edition, p. 1268 at para 18.62.

[21] As there is no evidence at all that the letter in question satisfies any of the required criteria for admission as a public document whether at common-law or under s. 29 of the Evidence Act (supra), I reject the applicants’ submission for the admission of this evidence on this ground.

[22] Rule 39.02 (2) provides as follows:

EVIDENCE BY CROSS-EXAMINATION ON AFFIDAVIT

On a Motion or Application

(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03. R.R.O. 1990, Reg. 194, r. 39.02 (2).

[23] The Divisional Court in its decision in First Capital Realty Inc. v. Centrecorp at paras 9 and 10 set forth the basis upon which a party may be granted leave to file responding affidavit material after having conducted cross-examination. The court stated as follows:

[9] The case law under rule 39.02 confirms the criteria to consider in determining whether a party should be granted leave to respond to a matter raised on cross-examination:

1. Is the evidence relevant;
2. Does the evidence respond to a matter raised on the cross-examination—not necessarily raised for the first time;
3. Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs/terms/an adjournment
4. Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?

[10] Courts have said that even where the factors are not met, the court has residual discretion under rule 1.04 to permit the evidence if it is in the interests of justice to do so.

[24] Counsel for the applicants fairly acknowledged that the supplementary affidavit is not evidence in response to matters raised on the cross-examinations. The introduction of this affidavit evidence is sought solely for the purpose of distinguishing the matters at stake in this application from those that were considered by Goldstein, J. and the Court of Appeal in the Toronto by-law application. On that basis alone, the applicants have failed to meet the criteria set out in Rule 39.02 (2) and as such the motion for leave to introduce this evidence must be dismissed. The Applicants have failed to satisfy any of the four conditions referenced to above.

[25] Further, this is not a case where the residual discretion provided for in Rule 1.04 should be exercised, as there is no evidence that introduction of the affidavit would be in the interest of justice.

[26] In addition to these reasons for dismissing the applicants’ motion for leave to introduce the affidavit, the applicants have failed to meet the jurisprudential requirements established under Rule 39.02 (2).

[27] In his decision in Shah v. LG Chem Ltd., 2015 ONSC 776 Perell, J. very thoroughly reviews the jurisprudence with respect to the admission of affidavit evidence on a motion or application under Rule 39.02 (2).

[28] His comments at paras 22–25 are especially instructive and apt in the circumstances of this case and read as follows:

[22] In P.M. Perell & J.W. Morden, The Law of Civil Procedure in Ontario, (2nd ed.) (Toronto: Lexis Nexis Canada, 2014) at pp. 677-78, I discuss the procedure for a motion. I note that the procedure involves a scheme for the exchange of affidavits. I state:

The procedure for a motion provides for closure or limits the delivery of evidence for the motion. The Rules require that all the parties must submit their evidence before any cross -examinations of opposing parties proceed. ….

In determining whether to grant leave for an additional affidavit or another examination and upon what terms, if any, the court will consider whether the matter raised on the cross-examination was relevant to the litigation, whether the affidavit sought to be filed is responsive to the matter, and whether allowing the delivery of the affidavit would operate unfairly against the adverse party: Nolan v. Canada (Attorney General) (1997), 38 O.R. (3d) 722 (Gen. Div.); Bloorview Childrens Hospital Foundation v. Bloorview MacMillan Centre.

On a motion for leave to file a further affidavit, a party should explain why the evidence could not have been included as part of its pre-cross-examination evidence: Brock Home Improvement Products Inc. v. Corcoran (2002), 58 O.R. (3d) 722 (S.C.J.), but in Nolan v. Canada (Attorney General) (1997), 38 O.R. (3d) 722 (Gen. Div.), Quinn J. rejected the proposition that leave could only be granted to introduce evidence to respond to a matter that had been raised for the first time during the cross-examination. In First Capital Realty Inc. v. Centrecorp Management Services Ltd. at para. 4 (Div. Ct.) (also Knowles (c.o.b. Special Events Marketing) v. Arctic Glacier Inc., 2011 ONSC 682 at paras. 52-54), the Divisional Court adopted this point and also stated that “a flexible, contextual approach is to be taken in assessing the criteria relevant to rule 39.02(2), having regard to the overriding principle outlined in Rule 1.04 of the Rules of Civil Procedure that the rules are to be interpreted liberally to ensure a just, timely resolution of the dispute” The Divisional Court held that all the criteria should be weighed and no one criterion was determinative.

[23] The jurisprudence about rule 39.02(2) indicates that: (a) leave should be “granted sparingly”: Catalyst Fund Partnership II v. IMAX Corp., [2008] O.J. No. 873 (S.C.J) at para. 14; Skrobacky v. Frymer, 2011 ONSC 3295 at para. 27; Sure Track Courier Ltd. v. Kaisersingh, 2011 ONSC 7388 at para. 51; (2) the moving party has “a very high threshold” to meet: Catalyst Fund Partnership II v. IMAX Corp., supra at para. 14; Skrobacky v. Frymer, supra at para. 27; Sure Track Courier Ltd. v. Kaisersingh, supra at para. 51; (3) the rule about the delivery of subsequent affidavits should not be used as “a mechanism for correcting deficiencies in the motion materials”: Lihou v. VIA Rail Canada Inc. at para. 24 (Master); and (4) the rule is designed to fairly regulate and provide closure to the evidence gathering process for motions and applications.

[24] In Catalyst Fund Partnership II v. IMAX Corp., supra, Justice Pepall stated at para. 14: “Rule 39.02 is there for a reason. It imports principles of fairness and economy.” In Skrobacky v. Frymer, supra at para. 27, Justice Corrick stated that: “Rule 39.02 is designed to prevent, in part, an endless exchange of affidavits and cross-examinations.” In Sure Track Courier Ltd. v. Kaisersingh, supra at para.44 Justice Goodman stated: “Rule 39.02 is one such rule designed to place finite limits on the evidentiary elements of litigation.”

[25] In Brock Home Improvement Products Inc. v. Corcoran (2002), 58 O.R. (3d) 722 at para. 8 (S.C.J.), Justice Stinson stated:

Rule 39.02(1) and (2) are an important and integral part of the procedural code governing the conduct of motions and applications. These rules are designed to place finite limits on the evidentiary element of those proceedings, an element that is all-too frequently time-consuming, expensive and drawn-out. These rules oblige the parties to consider the issues and to put all relevant evidence forward before embarking upon cross-examination of the opposite party’s witnesses. This is the approach mandated by the rules to achieve the “just, most expeditious and least expensive determination” of motions and applications. Consistent with that approach, it is only in exceptional cases that should resort should be had to rule 39.02(2).

[29] As noted by Perell, J., leave should be only granted sparingly after the moving party meets a very high threshold and the limits on the introduction of such post–cross-examination evidence are designed to provide closure to the evidentiary record for motions and applications.

[30] Quite apart from the fact that the applicants’ motion does not fall squarely within the scope of Rule 39.02 (2), the applicants also have failed in meeting the high standard allowing for the introduction of this type of evidence.

[31] As already noted, the purpose of the introduction of the proposed evidence is not to respond to evidence introduced on cross-examinations, additionally the timing of this motion on the application engages serious concerns about fairness in addition to closure of the evidentiary record. There is no evidence as to why the affidavit and the letter attached are relevant for the purpose of the application nor is there any explanation as to why this affidavit was being proffered at this late date.

[32] Further, the court must maintain the integrity of the evidentiary record to ensure that collateral or other matters, raised, perhaps, in other cases not expand the present litigation unnecessarily. This is particularly important in this case where the evidence to be introduced was not referred to by the Court of Appeal in the Toronto by-law case.

[33] Thus, even if the purpose of the introduction of this new affidavit evidence was to respond to evidence developed during cross-examination, I have concluded that it would not be admissible nor should leave be granted for its introduction for all of the reasons expressed.

[34] For these reasons, the applicants’ motion for leave to introduce the supplementary affidavit is dismissed.

Daley RSJ. Date: June 25, 2018