Court File and Parties

COURT FILE NO.: CV-23-53 DATE: January 25, 2024 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: CORPORATION OF THE MUNICIPALITY OF TEMAGAMI, Applicant/Moving Party

AND:

TEMAGAMI BARGE LIMITED, DASHIEL LOWERY DELAROSBEL, Respondents/Responding Parties

AND:

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE MINISTER OF NORTHERN DEVELOPMENT, MINES, NATURAL RESOURCES AND FORESTRY, Respondent/Non-participant

BEFORE: Justice J.S. Richard

COUNSEL: Charles Loopstra, for the Applicant/Moving Party Brian Chung and Leo Longo, for the Respondents/Responding Parties Eunice Machado, for the Respondent, not appearing

HEARD: January 17, 2024

Reasons

Overview – Motion to file additional affidavit under Rule 39.02(2)

[1] The Applicants, the Corporation of the Municipality of Temagami, brings a motion seeking leave:

1. To deliver the Affidavit of Laurier Picard, sworn October 13, 2023 (“Picard Affidavit”) in a Supplementary Application Record, despite cross-examinations in this matter having been conducted;
2. To require Mr. Picard to attend for cross-examinations by the Respondents within 15 days of the Order;
3. Costs of this motion on a substantial indemnity basis, or alternatively, on a partial indemnity basis.

[2] The Respondents, Temagami Barge Limited and Dashiell Lowery Delarosbel, oppose this motion, arguing that its basis is flawed as it does not fall under Rule 39.02(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Applicant municipality, they argue, is simply trying to enter fresh evidence not raised in cross-examinations to bolster its case, and allowing it to do so would cause the Respondents non-compensable prejudice.

[3] The Ministry of Northern Development, Mines, Natural Resources and Forestry did not participate.

Background

[4] The Respondent, Temagami Barge Limited, is a corporation owned by Respondent Dashiel Lowery Delarosbel (collectively, the “Respondents”). Temagami Barge Limited operates a business on property located within the boundaries of the municipality of Temagami. The land on which Temagami Barge Limited operates its business is designated provincial crown land (the “Property”).

[5] The Applicant, the Corporation of the Municipality of Temagami, is of the view that the Respondents are not complying with current zoning by-laws, and are essentially asking the court for a permanent injunction. Accordingly, an application was commenced on April 20, 2022, for declaratory and injunctive relief against the Respondents on the basis of alleged current non-conformance and multiple illegal uses on the Property (the “Application”).

[6] Cross-examinations were completed in August 2023. A motion brought by the Respondents relating to undertakings and refusals perceived to be outstanding was heard on December 13, 2023. A decision was rendered on December 14, 2023.

[7] The Applicant served a Notice of Motion for this motion on or about December 20, 2023.

Issue

[8] This motion requires a determination of the following issues:

a) Does the requested relief fall under Rule 39.02(2) of the Rules of Civil Procedure? b) If it does, should leave be granted to the Applicant allowing it to file the Picard Affidavit, thereby then triggering a right to examinations of Mr. Picard for the Respondents?

Applicable Law

[9] Evidence permitted in support of, or in response to, an application is limited to affidavit evidence, unless otherwise permitted by a statute or by the Rules (r.39.01(1)). A right to cross-examinations of the deponents, including deponents who are non-party witnesses in a proceeding (r.39.03), is therefore triggered once an affidavit is entered.

[10] The timing of such examinations is governed by Rule 39.02 which states that cross-examinations are to take place once all affidavits have been served:

On a Motion or Application

39.02 (1) A party to a motion or application who has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application. R.R.O. 1990, Reg. 194, r. 39.02 (1). (…)

39.02(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) [Emphasis added]

[11] Simply put, no affidavits may be filed after cross-examinations are complete. Exceptions may be made with leave from the court if the party seeking to enter an additional affidavit satisfies the requirements of Rule 39.02(2). Thus, if the Picard Affidavit responds to “any matter raised on cross-examination”, subject to caselaw-developed tests, then this court must grant leave and allow it to be entered.

Analysis

[12] The purpose of Rule 39.02 was affirmed and summarized in 1013952 Ontario Inc. (Silverado Restaurant and Nightclub) v. Sakinofsky, 2009 ONSC 55279:

9 The purpose of Rule 39.02 (2) is to require parties to identify all issues in their affidavits before cross-examination takes place. This is a principle of fundamental fairness: that an opposing party must know the case to be answered and have an opportunity to meet it. When a party fails to identify all issues at the outset, and tries to add evidence after cross-examination, he splits his case. In so doing, he may attempt to discredit the witness after cross-examination, when the witness has no means of responding.

10 At par. 8 of Brock Home Improvement Products Inc. v. Corcoran, [2002] O.J. No. 931, Mr. Justice Stinson observed that Rules 39.02 (1) and (2):

"... 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...."

11 At par. 9 of Brock Home Improvement Products, Stinson J. held that the onus is on the party seeking leave to file an affidavit after cross-examination to explain why it failed to include the proposed additional evidence in its case before cross-examination. He added that if there is not a reasonable explanation, leave should be refused. I agree with this approach. [Emphasis added]

[13] Additionally, policy considerations underlying Rule 39.02 were reaffirmed in Sure Track v. Kaisersingh, 2011 ONSC 7388:

30 (…) I believe that the words "ought to be permitted to respond" found in rule 39.02(2) impose a burden on a party who seeks leave to show more than an absence of non-compensable prejudice to the opposite party. In my view, those words import a requirement for the party who seeks leave under rule 39.02(2) to provide, by way of evidence on the motion for leave, a satisfactory explanation for its failure to include the proposed additional evidence as part of its pre-cross-examination case. The court should scrutinize carefully the reasons for the omission and the evidence offered in support of that explanation. To approach the issue otherwise undermines the integrity of the evidentiary framework for motions and applications that is mandated by the rules. Absent some reasonable explanation for the original omission, leave should be refused. [Emphasis added]

[14] The test granting leave under Rule 39.02(2), moreover, is set out in 2462192 Ontario Ltd. v. Paramount Franchise Group Inc., 2019 ONSC 593:

29 Keeping in mind that a flexible and contextual approach must be taken, respecting Rule 1.04 which provides that the Rules of Civil Procedure ought to be interpreted liberally so as to achieve justice and a timely resolution of disputes and so as not to punish litigants for the oversights of their counsel, this Court should ask itself the following four questions:

(i) is the proposed evidence relevant; (ii) does the proposed evidence respond to something raised during cross-examination(s), regardless of whether it had been raised beforehand; (iii) would leave result in non-compensable prejudice (something that cannot be addressed through costs, terms and/or an adjournment of the underlying motion); and (iv) does the moving party seeking leave have a reasonable or adequate explanation for not delivering the proposed evidence at the outset?

(i) Relevancy

[15] The Picard Affidavit contains 13 paragraphs, attaches photographs, and speaks to the Property’s historic use, specifically also explaining photographs dating from the 1980s.

[16] Relevancy is not at issue. According to the Respondents’ position, relevancy cannot be argued or conceded as the matter to which the Picard Affidavit allegedly responds was never raised in cross-examinations, thereby not falling within the parameters of Rule 39.02(2). With that said, if it did fall within the parameters of Rule 39.09(2), the Respondents admit that the subject matter of the Picard Affidavit, being the historical use of the Property, is relevant.

(ii) Response to matter raised in cross-examinations

[17] Mr. Picard is not an employee of the Applicant municipality. He is the father of a municipal employee, and his family resided on the Property in the 1980s.

[18] The Applicant submitted evidence explaining that Mr. Picard’s evidence was not known to the Applicant before cross-examinations, and that it was discovered as part of the Respondents’ request for an undertaking that the Applicant conduct an additional search. In a nutshell, the Applicant municipality submits that, had the Respondents not insisted on the requirement for further productions in the context of a pending undertakings motion, Mr. Picard’s evidence would not have been discovered.

[19] The Respondents take the position that the photographs included in the Picard Affidavit were produced in response to an undertaking relating to municipal files. They anchor their argument on the fact that the photographs did not form part of the municipal record, as they were personal photographs belonging to a municipal employee or a municipal employee’s father, which falls outside the scope of cross-examination, and then means that they cannot fall within Rule 39.02(2). Put differently, they maintain that they never requested a search of personal photographs outside the municipal record, and therefore, this evidence falls outside of the scope of cross-examinations, and therefore, of Rule 39.02(2).

[20] The ultimate question to be answered then, is: was the information contained in the Picard Affidavit part of a response to something raised by the Respondents in cross-examinations? Or, is it simply new and fresh evidence that came to the Applicant’s attention afterwards?

[21] During the cross-examinations on August 4, 2023, of Mr. Bell, the former municipal by-law officer for the Municipality, the following exchange took place:

97. Q. Okay. So what information were you given by the Ministry in order to proceed with this case? A. The property was being used, it was not necessarily owned by an individual and the use of the land under the zoning bylaw, which is zoned as- currently as a special management area and it didn't comply with the bylaw.

98. Q. And the Ministry people were telling you what your zoning said and it didn't comply with the bylaw .. A. No, they were providing information as to what has been going on with the history.

99. Q. Okay. I'd like you to provide me, so that I can review, the information that you were provided by the Ministry that led to your understanding of the background and what had been going on, etcetera. Is that something that you can provide? You clearly must have kept that information as being significant or important. MR. LOOPSTRA: All right, we'll take that under advisement. [*U] MR. LONGO: Thank you.

100. Q. Were there any Municipal files, Mr. Bell, that you referred to or examined in making your determinations respecting the Property and the uses thereon? A. Yes.

101. Q. What files were those? A. The files that we had- the Municipality had already accumulated over the years referring to this particular property and their land use.

102. Q. All right. And, I take it, sir, you don't have any of those files with you today? A. I do not have access to those files. MR. LOOPSTRA: Well, we’ve produced some of those documents. In fairness, we’ve produced some of them as exhibits. They came out of those files. MR. LONGO: Right, and what I’d be curious of are the things that didn’t get into the Affidavit as exhibits. MR. LOOPSTRA: Well, … MR. LONGO: So that extent I would like to see the content of the files that the witness has indicated he reviewed in understanding his background of the Property and its uses. MR. LOOPSTRA: Well, first of all, Mr. Longo, my understanding is that you did an FOI request. I believe that you have reproduced all the documents that you felt were relevant in your materials. Are you suggesting there’s other material in the Township files? Is that what you’re suggesting? MR. LONGO: I’m not certain what Mr. Bell has referred to when he says he’s gone through certain files. I don’t know if the FOI that was filed caught the files that Mr. Bell referred to as- under his answers as being what he referred to. That’s why I want to check and see if there is anything new or different, that is in the Municipality’s possession, that he particularly examined himself about the Property’s history and uses. MR. LOOPSTRA: Well I mean, I can tell you that I haven’t seen anything myself, but I mean, again, we’ll give you an under advisement to review the files or we’ll take it under advisement, I should say, to review the files, if there’s anything else that’s relevant I will produce it [*U]

[22] The Respondents’ request was limited to information that may have been contained in municipal files, and on multiple occasions requested that municipal files be reviewed again to ensure there was nothing overlooked relating to the period predating Mr. Bell’s employment.

[23] Undertakings were provided at the cross-examinations of August 4, 2023, to conduct an additional search, which we now call the “deep dive”. As we now know, an additional 153 pages of documents were found and forwarded to the Respondents on or about September 21, 2023. Mr. Picard’s affidavit was sworn a few weeks later on October 13, 2023.

[24] The court must not ask whether new information discovered relates to a search requested within parameters by the Respondents (i.e. within municipal records). Rather, the test is: does the proposed evidence respond to something raised during cross-examination(s)? Or, as highlighted in the Respondents’ own factum, “does the evidence respond to a matter raised on cross-examination” (See: Sure Track v. Kaisersingh, 2011 ONSC 7388).

[25] The subject matter of the Picard Affidavit is the historical land use of the Property. As evidenced above, this subject matter was raised by the Respondents during cross-examinations on numerous occasions.

[26] The subject matter of historical land use of the Property was not raised for the first time, but the test does not require the subject matter to be new (see Brock Home Improvement Products Inc. v. Corcoran, [2002] O.J. No. 931).

[27] In fact, as explained in Elgner v. Freedman Estate, [2013] ONSC 2176 and in First Capital Realty Inc. v. Centrecorp Management Services Ltd, where the lack of essential knowledge of an affidavit was not discovered until the cross-examination, and examining the additional witness is the only plausible way to obtain the information, leave should be granted, subject to all other requirements of the test.

[28] Thus, I find that the subject matter, being the historical land use of the Property, was raised during cross-examinations.

(iii) Non-compensable prejudice

[29] The Respondents submit that granting leave to the Applicant would result in non-compensable prejudice. They support their position based on the following:

• The Applicant only served a sworn copy of the Picard Affidavit on December 20, 2023, which was after the Respondents’ motion to compel Mr. Bell’s attendance for further examination;
• Had the Applicants filed the Picard Affidavit before cross-examinations, the Respondents may have taken a different strategic approach in response to the application of April 20, 2022, and may have also undertaken further or more extensive investigations to directly address the allegations in the Picard Affidavit, but have been deprived of those opportunities, or at least have been severely disadvantaged, to the point of not being compensable by way of a cost award or an adjournment.

[30] With respect, this court disagrees. By requesting such undertakings for additional reviews of municipal files to obtain more information relating to the historical land use of the Property, the Respondents knew, or ought to have known, that they were inviting this new information into the realm of evidence. There is also no evidence before the court to suggest that the Applicant knowingly withheld this information. On the contrary, it appears as though they were surprised by this new evidence as well.

[31] Granting leave will not result in non-compensable prejudice to the Respondents.

(iv) Reasonable or adequate explanation

[32] The final part of the test for leave under Rule 39.02(2) requires the Applicant to provide a reasonable or adequate explanation for not delivering the Picard Affidavit at the outset of the Application.

[33] The court accepts as a reasonable and adequate explanation that the photographic evidence underlying the Picard Affidavit was not discovered until the Applicant municipality performed an additional search, or the “deep dive” at the request of the Respondents during cross-examinations. The fact that these were not part of the municipal record, as they were personal photographs of Mr. Picard, father of the municipality’s Deputy Treasurer who became the point of contact for the Applicant municipality in this litigation after Mr. Bell’s departure, renders this explanation even more reasonable and adequate.

Alternative positions of the Respondents

[34] In their submissions, the Respondents requested that the Applicant’s motion be dismissed, but that in the alternative, if leave was granted, that:

(a) Paragraphs 8 to 12 of the Picard be struck; (b) The Respondents be granted leave to file further affidavits in response to the Picard Affidavit within 30 days of the Order; (c) Any further cross-examinations on affidavits delivered by the Respondents be conducted within 30 days of the delivery of such affidavits; (d) The application hearing dates returnable March 25 and 26, 2024 shall be vacated, and the alternative hearing dates of June 27 and 28, 2024 shall be hereby confirmed.

[35] First, there is no motion to strike before the court.

[36] Secondly, giving the Respondents carte blanche by granting leave to file further affidavits in response to the Picard Affidavit risks opening the floodgates to unnecessary delays. Essentially, this would consist of a delegation of the court’s responsibility to control its process, which is contrary to the administration of justice. Should potential evidence trigger and satisfy the Rule 39.02(2) test during the cross-examinations of Mr. Picard, then the Respondents shall have the same right as the Applicant to ask the court for leave.

[37] Similarly, vacating the dates of March 25 and 26, 2024 would be premature at this stage. The dates will remain, but the parties should alert the court as soon as possible if these dates are no longer feasible given the result of this motion.

Order

[38] For reasons already mentioned, the Applicant’s motion is granted:

1. Pursuant to Rule 39.02(2), the Applicant shall deliver the Affidavit of Laurier Picard, sworn October 13, 2023, in a Supplementary Application Record forthwith, despite cross-examinations in this matter having been conducted;
2. Unless otherwise agreed upon by the parties, Laurier Picard shall attend for cross-examinations by the Respondents within 15 days of the Order;
3. Costs of this motion on a partial indemnity basis.

Justice J.S. Richard Date: January 25, 2024