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Judicial Review - Record - When to Address Motion to Add. Humberplex Developments v Attorney General for Ontario
In Humberplex Developments v Attorney General for Ontario (Div Court, 2023) the Divisional Court considered, when addressing a motion to add material to a JR record, whether to address it now or to defer it to the full JR hearing:Timing of Motion
[10] 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. For this reason, I, as the case management judge asked to schedule this motion, expressly left it open that the motion judge could adjourn the motion to the panel hearing the application.
[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.), the motion to strike out certain affidavits was left to be determined by the panel at the merits hearing. At that stage the court found, at para.7, that 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.”
[12] Permitting “inadmissible argument, opinions or comments to remain in the affidavit until the application is heard presents the opposing party with the dilemma of having to choose between ignoring, responding to and/or cross-examining on the inadmissible paragraphs. None of these options is ideal. A pre-emptive motion to strike the offending paragraphs may be the more appropriate route because it permits the parties to limit their response or cross-examination to those parts of the affidavits that contain admissible evidence.”: Hunt v. Stassen, 2019 ONSC 4466, at para. 11.
[13] However, the Court in Sierra Club cautioned, at para. 7, that if “the motion judge is unsure about the relevance of certain material, those issues may be left to be determined by the panel hearing the judicial review.”
[14] In Hanna, Swinton J. struck out some expert evidence on the motion and left some issues about the remaining evidence to be determined by the panel at the hearing of the application. This has since been described as a hybrid approach: Hunt, at para. 9; Holder v. Wray, 2018 ONSC 6133. I conclude below that this motion calls for a hybrid approach.
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