|
Judicial Review - Motions. Brown v. HPARB
In Brown v. HPARB (Ont Divisional Ct, 2025) the Divisional Court considers motions to strike some contents of JR records, deferring them from this pre-trial motion to the full panel hearing:[10] On a review of the affidavit, I see the basis for many of the issues raised on this motion. However, I must also consider a timing issue. I see that this motion was scheduled in advance of the hearing of the application and given the court’s directions I do not criticize the moving parties for bringing the motion now. However, courts are generally reluctant to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits: Hanna v. Attorney General for Ontario, 2010 ONSC 4058, at para. 7.
[11] There are exceptions to the above general rule. In Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 (Div. Ct.), relied on by the moving parties, the court observed that in that case, the motion “should have been brought prior to the hearing by the panel, in order to clarify the contents of the record” and to “define the issues for the hearing based upon properly admissible evidence.” However, the Court in Sierra Club also held that if the motion judge is unsure about the relevance of certain material, the issues may be left to be determined by the panel hearing the judicial review.
[12] There are considerable issues with the affidavit, beginning with questions of admissibility through to questions about argument and spin, which is not permitted, and other issues about statements put forward as evidence. However, on the materials before me, it is not clear whether some of the evidence is needed for a procedural fairness ground. Given that uncertainty, and the mixed nature of the proposed evidence, it is not practical to strike out only those portions of the affidavit that are impermissible at this early stage. I conclude that this motion must be adjourned to the panel hearing the applications and decided at that time in full context.
[13] As a result, the parties must put forward their application materials without assuming, one way or the other, that this affidavit will be permitted. The applicant’s factum must therefore expressly state when a submission relies on the proposed evidence in the affidavit and cite the specific paragraphs of the affidavit for each of those submissions. The respondents must do the same.
[14] These motions, and any related costs orders, are adjourned to the panel hearing these applications. .... . Ash v. Chief Medical Officer of Health
In Ash v. Chief Medical Officer of Health (Div Court, 2023) the Divisional Court sets out the test for setting aside an order [presumably under R37.14], here one quashing a JR:[1] This is a motion to vary or set aside the order of MacEachern J. dated July 22, 2022, quashing the applicant’s application for judicial review.
[2] In order to succeed on this motion, the applicant must demonstrate that the Motion Judge committed an error of law or principle or a palpable and overriding error of fact (MacLean v. Askew, 2021 ONSC 63 at para. 9 (Divisional Court))).
|
