2018 ONSC 4552
COURT FILE NO.: CV-17-131956 (Newmarket)
MOTION HEARD: 2018 06 14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Minotar Holdings Inc. v. Her Majesty the Queen in right of Ontario as represented by the Minister of Municipal Affairs and Housing
BEFORE: MASTER R.A. MUIR
COUNSEL: Paul Fruitman for the moving party/plaintiff
Sarah Kromkamp for the responding party/defendant
REASONS FOR DECISION
[1] This motion is brought by the plaintiff pursuant to Rule 29.1 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”). The plaintiff seeks an order establishing a discovery plan. The parties largely agree on the terms of the discovery plan. However, the plaintiff’s request for the production of three categories of documents remains in dispute and is opposed by the defendant.
[2] The plaintiff owns land in Markham, Ontario. It alleges that in or about 2004 or 2005 the defendant mistakenly included a portion of the plaintiff’s land as part of the Greenbelt Area pursuant to the provisions of the Greenbelt Act, 2005 SO 2005, c 1 (the “Act”). In response to this alleged “mistake” the plaintiff undertook various inquiries and investigations. As part of its efforts to address this situation, the plaintiff made submissions to the defendant as part of the defendant’s 10 year review of its Greenbelt Plan. This review was completed in May 2017. Following the completion of the review, the defendant declined to remove the subject land from the Greenbelt Area.
[3] The plaintiff then started this action on July 25, 2017. The important allegations for the purposes of this motion are the plaintiff’s assertions that the defendant breached its common law and statutory duties and committed misfeasance in public office by refusing the remove the subject land from the Greenbelt Area as part of the 10 year review process. The plaintiff goes on to allege that the defendant refused to consider the plaintiff’s submissions and that the review process was a sham, predetermined and did not reflect the purposes of the Act. The plaintiff makes allegations that the defendant acted overall in an arbitrary and capricious fashion when dealing with the plaintiff.
[4] In response to these allegations, the defendant has pleaded that its staff carefully considered all of the plaintiff’s submissions. After consultations with Ministry of Natural Resources and Forestry staff, the defendant concluded that the subject land was of significant environmental value and that the current boundary is consistent with the policy rationale behind the original Greenbelt Area.
[5] All of the disputed production the plaintiff is seeking on this motion concerns documents relating to other properties that are, or were, included by the province in the Greenbelt Area. The plaintiff seeks production of three disputed categories of documents:
(a) documents relating to the decision of the defendant in 2004-2005 and 2017 to remove from the draft Greenbelt Area certain lands located in the City of Vaughan;
(b) documents relating to 15 sites that were selected for removal from the Greenbelt Area after the 10 year review in 2017; and,
(c) documents relating to all submissions regarding approximately 700 properties made as part of the 10 year review.
[6] The parties are in general agreement with respect to the factors and principles the court should apply on this motion. The production of documents is governed by the relevance test set out in Rule 30.03. The court must also take into account the proportionality requirements of Rule 29.2.03.
[7] The Supreme Court of Canada has recently commented on the concept of relevance. In Jacques v. Pétroles Irving Inc., 2014 SCC 66, the court stated at paragraph 30 “to be relevant, the requested document must relate to issues between the parties, be useful and be likely to contribute to resolving the issues”. The Supreme Court went on to note that one of the purposes of the relevance requirement is to avoid a fishing expedition which may result in delay and unnecessary complexity. See Jacques at paragraph 31. It is also important to remember that on a production motion, relevance is determined by the pleadings and not the merits of a claim or defence. See Alofs v. Blake, Cassels & Graydon, 2016 ONSC 6907 (Master) at paragraphs 10 and 11. I am also mindful that the relevance test is a relatively low bar at the discovery stage. See Gu v. Habitat for Humanity Greater Toronto Inc., 2017 ONSC 2793 (Master) at paragraph 8.
[8] These are the factors and principles I have considered and applied in determining the issues on this motion.
[9] I will deal with categories (b) and (c) of the requested production first. In my view, the requested documents relating to the 10 year review submissions and the 15 sites selected for removal from the Greenbelt Area following the review, are not relevant and need not be produced. The plaintiff’s statement of claim does not allege that it was treated differently than, or even the same as, other land owners during and after the 10 year review process. In this context, it does not plead that its land should be removed from the Greenbelt Area because it is similar to other land that was removed. The statement of claim focuses on the plaintiff’s land and specifically the absence of natural features. The thrust of the allegations in the statement of claim relevant to these two categories of documents is that the plaintiff’s land should not have been included in the Greenbelt Area because it is featureless and was only included in error. In my view, the documents relating to the other lands that fall within these two categories are simply not relevant to the plaintiff’s allegations about the manner in which its land was treated as part of the review process or otherwise. The plaintiff’s allegations in this context are about its land and not about any other land.
[10] Counsel for the plaintiff candidly acknowledged in argument that if only the allegations in the statement of claim were under consideration, these two categories of documents may not be relevant to matters in issue in this action. However, the plaintiff pointed to the defendant’s pleading. The plaintiff argued that it was the defendant that opened up this area of inquiry by the allegations in its pleading. The defendant has included in its pleading various allegations about the manner in which the review process was carried out. These allegations include the fact that it received and considered over 700 requests, that it applied specific policy considerations to its review and that it ultimately made minor boundary changes to 15 areas within the Greenbelt Area.
[11] It is my view, however, that these allegations must be considered in context. Simply because a pleading is relevant for one purpose does not make it relevant for all purposes. The plaintiff specifically raised the issue of the ten year review process in its pleading. The statement of claim contains a lengthy description of the review process in general and its application to the plaintiff specifically. The portions of the statement of defence the plaintiff relies upon to support its request for these two categories of production are simply responsive to the plaintiff’s pleading in this respect. The statement of defence provides background and a general overview of the 10 year review process and its outcome. The statement of defence does not allege that the plaintiff was treated the same as other landowners or differently from other landowners. It simply responds to the plaintiff’s overview of the process as pleaded and provides a similar overview from the defendant’s perspective. When read as a whole, and within this context, the specifics of each property review and any boundary changes made are simply not relevant to matters in issue in this action. The requested documents from categories (b) and (c), above, need not be produced.
[12] I have, however, come to a different conclusion with respect to the documents requested and described in category (a), above. These are the so-called Vaughan lands documents. The plaintiff has specifically pleaded in paragraph 36 of the statement of claim that the defendant initially included approximately 1,000 acres of land in the City of Vaughan within the draft Greenbelt Area. The plaintiff alleges that these lands lacked natural features and following submissions by landowners the defendant removed these lands from the draft Greenbelt Area. The plaintiff specifically pleaded that the Vaughan lands are similar to the plaintiff’s land in terms of their lack of natural features. The defendant has denied these allegations in its statement of defence. In my view, it is clear from the context of this portion of the plaintiff’s pleading that it is alleging that it was treated differently than the owners of the Vaughan lands. In paragraph 107 of the statement of claim the plaintiff alleges that the actions of the defendant in this regard were arbitrary and capricious. In my view, the pleadings support the production of the documents relating to the Vaughan lands. The documents are relevant to the plaintiff’s allegations of arbitrary and capricious actions insofar as it may have been treated differently than the owners of the Vaughan lands.
[13] The defendant suggested in its factum and in argument that these documents are of little or no probative value. The defendant submitted that the inclusion or exclusion of these lands is wholly a matter of cabinet discretion and it would be impossible to determine these many years later what cabinet may have decided if the plaintiff had made submission similar to the owners of the Vaughan lands. That may or may not be so. However, in my view this is not an argument relevant to this production motion. On a motion of this nature, the court must take the pleadings as they are. The merits of a claim or defence are not a relevant consideration. The issue of cabinet discretion is more properly a matter for trial or at least a summary judgment motion.
[14] I do not view proportionality as a significant concern with respect to the Vaughan lands documents. The Vaughan lands are comprised of approximately 1,000 acres. There is no evidence before the court with respect to how many properties this involves but probably not a significant number. If there were a large number of properties involved, the defendant could have provided that evidence to the court but it did not do so. I also note that this action potentially involves a claim for damages in excess of $100,000,000.00. In my view, production of the Vaughan documents is proportional in the circumstances of this action.
[15] I agree with the defendant’s submission that it is not necessary for the court to formally approve the discovery plan. The parties have agreed to the terms of the discovery plan, subject to the court’s determination of the issues on this motion.
[16] I therefore order as follows:
(a) the defendant shall produce the documents relating to the Vaughan lands described as category (a), above (category 11 in the discovery plan);
(b) the balance of the relief on this motion is dismissed;
(c) if the parties are unable to agree on the issue of the costs of this motion or the date for the delivery of the Vaughan lands documents, they shall provide the court with brief submissions in writing by September 7, 2018; and,
(d) these submissions may be sent directly to me by email.
2018 07 25
Master R. A. Muir