Court File and Parties

Court File No.: CV-18-591564 Date: 2018-10-09 Superior Court of Justice - Ontario

Re: Clublink Corporation ULC and Clublink Holdings Limited, Applicants – and – The Corporation of the Town of Oakville, Respondent

Before: Justice E.M. Morgan

Counsel: Cynthia Kuehl and Mark Flowers, for the Applicants Sandra Barton and Jennifer King, for the Respondent

Heard: October 5, 2018

Admissibility of Evidence

[1] This endorsement considers two motions heard together. They both concern a supplementary affidavit of Robert Visentin with appended exhibits (the “Supplementary Affidavit”), served by Clublink Corporation ULC and Clublink Holdings Limited (collectively “Clublink”) on August 16, 2018, some 5 weeks after conclusion of the cross-examinations for an Application to be heard on October 22-23, 2018.

[2] Since the Supplementary Affidavit has already been filed with the court in Clublink’s Supplementary Application Record for the upcoming Application, the Town of Oakville (“Oakville”) has moved to strike it out on the grounds that it was served out of time and filed without leave despite leave being required. Clublink, in turn, moves under Rule 39.02(2) of the Rules of Civil Procedure for leave to admit the Supplementary Affidavit. Clublink’s motion serves as its response to Oakville’s motion, while Oakville’s motion effectively serves as its response to Clublink’s motion.

[3] Under Rule 39.02(1), a party to a motion may only cross-examine the opposing side’s affiants once it has served every affidavit on which it intends to rely. The general purpose of this Rule is to import “principles of fairness and economy”, Catalyst Fund Ltd. v IMAX Corp, [2008] OJ No 873, at para 14, and to “provide closure to the evidence gathering process for motions and applications”: Shah v LG Chem, Ltd., (2015), 2015 ONSC 776, 124 OR (3d) 570, at para 23. Accordingly, courts have observed that leave to submit affidavits produced subsequent to cross-examinations being conducted should be granted “only in exceptional circumstances”: Brock Home Improvement Products Inc. v Corcoran (2002), 58 OR (3d) 722, at para 8.

[4] In First Capital Realty Inc. v Centrecorp, 2009 CarswellOnt 6914, at para 13, the Divisional Court set out the four-part analysis to be followed for granting leave under Rule 39.02(2) to admit late-filed evidence:

a) is the evidence relevant;

b) does the evidence respond to a matter raised on the cross-examination, not necessarily raised for the first time;

c) would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms or an adjournment; and

d) does the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?

[5] By way of brief background, Clublink is the owner of the Glen Abbey Golf Course, which Oakville has designated a cultural heritage landscape under Part IV of the Ontario Heritage Act, RSO 1990, c. O 18 (“OHA”). In addition, Oakville has designated four cultural heritage districts under Part V of the OHA. In January 2018, the Respondent enacted or amended five by-laws of general application dealing with these conservation efforts.

[6] In the forthcoming Application, Clublink is seeking to quash all five by-laws for “illegality” under s. 273(1) of the Municipal Act, 2001, SO 2001, c. 25. Its argument, among other things, is that the by-laws are discriminatory and have been enacted in bad faith. The Supplementary Affidavit has been submitted by Clublink in an effort to support this argument by providing a first-hand demonstration of Oakville’s bad faith.

[7] Section 33 of the OHA prohibits alterations of a property designated under Part IV of the OHA without permission of Oakville if the alteration will affect its cultural heritage. Section 42 of the OHA imposes similar restriction on alterations for properties in a district designated under Part V of the OHA. The by-laws authorize the creation of a conservation plan, which can be created either by a property owner or by Oakville. The plan sets out what proposed alterations effect conservation attributes and what should be contained in an alteration application.

[8] The cross-examination of Oakville’s affiant, Susan Schappert, was completed on July 11, 2018. During the course of that cross-examination, counsel for Clublink asked Ms. Schappert, who is Oakville’s heritage planning official, about the process followed in Clublink’s application to alter the Glen Abbey property. Ms. Schappert confirmed that Clublink has been required to produce a conservation plan as part of the application process.

[9] Clublink’s counsel also asked Ms. Schappert whether there have been any other applications for alterations of designated properties since enactment of the by-laws in issue. She testified that up until the date of the cross-examination, there had been six applications for alterations of properties in Oakville’s four heritage conservation districts. She also stated in her cross-examination that none of those owners had to produce a conservation plan or had been put through the same elaborate process as Clublink had been for the Glen Abbey property.

[10] In his Supplementary Affidavit, Mr. Visentin deposed that having learned during Ms. Schappert’s cross-examination that there were other alteration applications going on, he went to Oakville’s website and found the notice of the then upcoming meeting of the Special Heritage Oakville Municipal Advisory Committee (the “Heritage Committee”), which considers alteration applications. The Heritage Committee has regular meetings twice a month and they are always posted on the Town’s website. Mr. Visentin did not say in his Supplementary Affidavit how he knew to find the Heritage Committee meetings on Oakville’s website, but it was obvious that the information was published and readily available to the public and that Mr. Visentin had no trouble finding it and attending at the next meeting.

[11] Mr. Visentin went on in his Supplementary Affidavit to relate that he attended at a Heritage Committee meeting on July 24, 2018, and that at that meeting an application regarding a property located at 185 William Street was under consideration. Mr. Visentin indicated that the property was located within one of Oakville’s heritage conservation districts, and that the owner was seeking permission to alter a building situated on the property. He further indicated that the owner of 185 William Street was apparently put through a far less elaborate process than Clublink has been put through in its own application, and that no conservation plan was required of the owner of 185 William Street.

[12] Mr. Visentin deposed that he made oral submissions at the July 24th meeting of the Heritage Committee. His speaking notes, together with Clublink’s counsel’s follow-up correspondence with Oakville, form part of the Supplementary Application Record which Clublink seeks to enter into evidence. Clublink argues that the evidence of the July 24th meeting and the treatment given the 185 William Street application provide support for its argument that the general application by-laws enacted by Oakville are just a veneer to hide the real aim of the heritage designation by-laws, which is to single out and target the Glen Abbey Golf Course, and to treat its owner differently than all of the other properties in Oakville’s designated heritage districts.

[13] Counsel for Oakville argues that the Supplementary Affidavit and exhibits thereto are not admissible because, in the first place, the evidence is not relevant. She points out that the Heritage Committee meetings are concerned with enforcement of the by-laws, not their enactment, and that discriminatory enforcement does not amount to illegality for the purposes of the Municipal Act.

[14] It is Oakville’s position that the process by which it considers and enforces its by-laws can indeed vary from property to property, and that for any given case “[i]t is no defence…to say that there are other cases of infringement which have not been questioned”: Polai v City of Toronto, [1973] SCR 38, 41. Oakville’s counsel submits that the manner in which it enforces its by-laws is a question of implementation, which is always discretionary and is not a ground on which one can quash a by-law: Dumoulin v Deep River, 2014 ONSC 5393, at para 7.

[15] Clublink’s counsel explains that Oakville’s characterization does not put Mr. Visentin’s evidence in correct perspective. Her point is that the implementation and manner of enforcement of the by-laws and the heritage policy contained within them sheds light on the rationale for their enactment in the first place. Clublink contends that Oakville’s post-passage conduct demonstrates that the enactment, passage, and adoption of the by-laws was done in bad faith.

[16] Counsel for Clublink also makes the point that the evidence contained in the Supplementary Affidavit was by definition unavailable prior to the cross-examinations, as it entails an event – a meeting of the Heritage Committee – that did not take place until after the cross-examinations were completed. In the Supplementary Affidavit, we learn that 185 William Street is within a Part V district and that there is no conservation plan for this property. We also learn that the decision of the committee recommending that the alteration be approved was made without regard to the cultural heritage landscape by-law.

[17] Clublink is correct in submitting that, at least in the most literal sense, none of this could have been known prior to the cross-examinations. However, in putting it this way, Clublink also obscures its own primary point. The fate of 185 William Street is utterly irrelevant to the issues at hand unless it is typical of all of the other alteration applications by property owners whose properties fall within one of the heritage by-laws. If this alteration application were unique, and all of the other alteration applications followed a process identical to the Glen Abbey application process, then the Supplementary Affidavit would be useless. Its only usefulness to Clublink and to the proceeding overall is if it demonstrates a pattern of behaviour by Oakville and the Heritage Committee that characterizes all of their dealings with properties governed by the heritage by-laws.

[18] All of the other Heritage Committee meetings that considered alteration applications, and that were referenced by Ms. Schappert in her testimony, took place prior to the cross-examinations of July 9-11, 2018. It is the process followed in those applications that counts insofar as Clublink’s point about systematic bias and bad faith is concerned. The post-cross-examination application described in the Supplementary Affidavit is only significant insofar as it reflects a continuation of the pattern established by the pre-cross-examination applications.

[19] As counsel for Oakville emphasizes, no explanation has been forthcoming from Clublink as to why it did not submit affidavit evidence describing the way alteration applications were dealt with by Oakville and the Heritage Committee at meetings prior to the cross-examinations. It is those meetings that contain the real evidence that Clublink wants; the post-cross-examination meeting is an afterthought that tries to capture a process that might hark back to the pre-cross-examination meetings. It is not, as Perell J. has put it, a “new matter that could not be reasonably anticipated by [Clublink]”: Johnson v North American Palladium Ltd., 2018 ONSC 4496, para 13.

[20] Accordingly, the evidence contained in the Supplementary Affidavit and exhibits is either irrelevant (i.e. if the 185 Williams Street application is unique), or could have been adduced prior to the cross-examinations (i.e. if the 185 Williams Street application is similar to all other alteration applications under Oakville’s heritage by-laws except for the Glen Abbey Golf Course). Either way, it does not meet the test for admissibility under Rule 39.02(2). At least one of the criteria set out in First Capital, supra, is not met.

[21] The Supplementary Affidavit and the entire Supplementary Application Record submitted by Clublink is therefore inadmissible. It will not be part of the evidence at the upcoming hearing of the Application.

[22] That said, Clublink appears to have lost little in terms of the argument it wishes to put forward. To be clear, I make no comment as to the merits of that argument in the upcoming Application; I simply note that there is other evidence in the record on whose back Clublink’s argument can stand.

[23] The evidence contained in the Supplementary Affidavit for the most part appears to reiterate, with some superfluous detail, matters attested to by Ms. Schappert and that are therefore already in the record. Ms. Schappert testified that since the passage of the heritage by-laws and up to the date of her cross-examination, Oakville has received, considered, and approved six applications for alterations of protected heritage properties located in heritage conservation districts designated under Part V of the OHA. She also indicated that these approvals have been done in the absence of a conservation plan approved by Oakville under the relevant cultural heritage by-law.

[24] Seen in this way, the entire motion and cross-motion becomes something of a tempest in a teapot. It was a procedural misstep for Clublink to file the Supplementary Affidavit and Supplementary Application Record with the court without having obtained leave. I will ignore that evidence in considering the upcoming Application on its merits, but in doing so I will be ignoring little in the way of real substance.

[25] Counsel for both sides have indicated that they will make an effort to agree on costs. If an agreement cannot be reached, they may make brief written submissions and should send them to me by email to my assistant.

Morgan J. Date: October 9, 2018