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Civil Litigation - Affidavits. The Philosopher’s Wool Environmental Preserve v. The County of Bruce [striking an affidavit]
In The Philosopher’s Wool Environmental Preserve v. The County of Bruce (Ont Div Ct, 2025) the Ontario Divisional Court dismissed "in large part" a motion to quash a JR, this JR challenging a municipality's "decision to approve a plan of subdivision".
Here the court considers a motion to strike an affidavit in a JR, and deference to be accorded the panel hearing the full proceeding:[75] This court in 2024 recently confirmed that the correct approach on an interlocutory motion for striking an affidavit is as follows: where there is material in the affidavits that is clearly inadmissible it should be struck. Where there is doubt concerning the admissibility of affidavit material it should not be struck and should be left to the application panel.
[76] This approach is justified because defining the record appropriately in advance of the hearing enhances the panels’ ability to determine the merits and thus is in the interests of justice. (Joe Singer Shoes v. A.B., 2018 ONSC 5869).
[77] This deference to the role of the panel in determining the merits of the application on the evidence was clearly shown in Rockcliffe Park Residents Association v. Ottawa (City), 2024 OJ No. 2156 at paras 31-33. In that case the Court endorsed the approach that the motion Judge must be careful not to usurp the role of the panel in determining the merits of the application. Where there is doubt concerning the admissibility of affidavit material it should not be struck.
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[83] My rulings on the evidence I have allowed to go to the Panel, and my rulings on jurisdiction and standing, are made without prejudice to the parties making contrary argument to the panel who will hear this appeal. . Folz v Algoma Family Services
In Folz v Algoma Family Services (Div Court, 2023) the Divisional Court considered a JR of IPC-PHIPA adjudication denials regarding requests for personal health information held by a child protection agency, specifically, information: "... made in relation to an intensive treatment program for the Applicant’s son".
In these quotes the court comments on the difficulty in isolating the relevance of different portions of affidavits, here in light of the JR 'Keeprite' record fresh evidence doctrine:[23] Moving to the affidavits, the Applicant relies on the principles in Re Keeprite Workers’ Independent Union and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.) and related cases, which provide that supplementary evidence is permitted in limited circumstances. Unfortunately, these two affidavits are an amalgam of material, some of which is simply inadmissible, some of which is already in the record of proceedings, some of which does not fall within the permitted circumstances for additional evidence, and some of which does.
[24] We accept the evidence that explains why the Applicant, himself, did not initiate a reconsideration. The evidence about court orders in the family law proceedings is unnecessary. The record of proceedings includes the court orders that the Adjudicator reviewed, as discussed further below. The proposed evidence about the nature of the family law proceedings, and whether there was a basis in the record for other findings, contains argument about what conclusions should be drawn from the record. Those arguments may be made without supplementing the record of proceedings. However, in this case, even if we accepted all of the affidavit evidence it would not change the outcome. It is therefore unnecessary to go through the problems with the evidence in more detail. . Rosianu v. Western Logistics Inc.
In Rosianu v. Western Logistics Inc. (Fed CA, 2021) the Federal Court of Appeal commented on the nature of admissible affidavit evidence, here in a judicial review:[29] Moreover, as explained by the Federal Court, there are general principles applicable to affidavit evidence (specifically, in this context, Rule 81(1) of the Federal Courts Rules, SOR/98-106), for example, it cannot consist of arguments, opinions, or hearsay. Finally, the evidence must be relevant to an issue properly before the Court. ...
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