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Civil Litigation - Affidavits - Cross-Examination. Payne v. Ontario Human Rights Commission [leading case]
In Payne v. Ontario Human Rights Commission (Ont CA, 2000) the Ontario Court of Appeal (Sharpe JA) considered an appeal from a evidentiary motion during a JR of a denied HRC application, this where the "principal issue ... is whether the appellant is entitled to full disclosure and production of all facts, arguments and considerations that were presented to the Commission when it considered her complaints.".
The court considers the 'range' of a JR applicant's entitlement to the record, here in a R39.03 ['Evidence by Examination of a Witness'] motion/application cross-examination evidence context [para 161 and 172 are oft-quoted in the cases]:[133] ... The question on this appeal is whether the appellant is entitled to have production of a fuller record of what transpired before the Commission. Until that issue has been resolved, it would be premature to express any view as to the merits of her application for judicial review.
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(d) The "Record" on Judicial Review
[160] The content of the court record for an application for judicial review is defined by the Judicial Review Procedure Act, R.S.O. 1990, c. J-1 and by the Rules of Civil Procedure. The process begins with the notice of application: r. 68.01(1). Upon being served with the notice of application for judicial review, the decision-maker is required by s. 10 of the Judicial Review Procedure Act, to file with the Divisional Court "the record of the proceedings in which the decision was made". The "record" is not defined by the Act.
[161] An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court. This is an aspect of the superior court's inherent powers of judicial review. A superior court may insist upon the production of an adequate record of the proceedings before the tribunal being reviewed. As stated by Denning L.J. in R. v. Medical Appeal Tribunal ex p. Gilmore, [1957] 1 Q.B. 574 at 583 (C.A.): "The court has always had power to order an inferior tribunal to complete the record ... [A] tribunal could defeat a writ of certiorari unless the courts could order them to complete or correct an imperfect record. So the courts have the power to give such an order". See also R. v. Northumberland Compensation Appeal Tribunal, ex p. Shaw, [1952] K.B. 338 at 352–54 (C.A.); Canadian Workers Union v. Frankel Structural Steel Ltd. (1976), 1976 CanLII 829 (ON SC), 12 O.R. (2d) 560 at 577 (Div. Ct.) per Reid J.; F.G. Spencer Ltd. v. Prince Edward Island (Labour Relations Board) (1970), 1970 CanLII 960 (PE SCAD), 16 D.L.R. (3d) 670 (P.E.I.S.C.); Battaglia v. British Columbia (Workmen's Compensation Board) (1960), 1960 CanLII 334 (BC SC), 22 D.L.R. (2d) 446 (B.C.S.C.). A statutory body subject to judicial review cannot immunize itself or its process by arriving at decisions on considerations that are not revealed by the record it files with the court.
(e) Examination of Witnesses
[162] Rule 39.03 provides that a person may be examined as a witness before the hearing of a pending motion or application. Rule 39.03 applies to applications for judicial review. The leading Canadian text on administrative law, Brown and Evans, Judicial Review of Administrative Action in Canada (updated June 30, 1999) at § 6:5530, states: "A witness may be summoned to give evidence under oath in support of an application for judicial review and any transcript of that evidence is to be included in the Application Record". This proposition is borne out by the authorities that have considered the Rule in relation to applications for judicial review. As I explain below, these authorities hold that a party to an application for judicial review is entitled to adduce evidence by way of examination, provided the evidence sought to be adduced is relevant to an issue properly raised on the judicial review application and is not specifically excluded by statute or by some applicable legal principle, and provided that the examination is not being used for an ulterior or improper purpose and does not constitute an abuse of process of the court.
[163] The leading case is the decision of this Court in Canada Metal Co. Ltd v. Heap (1975), 1975 CanLII 675 (ON CA), 7 O.R. (2d) 185. That case dealt with former r. 230, the predecessor to r. 39.03 in relation to an application for prohibition, one of the common law remedies that preceded the Judicial Review Procedure Act. An applicant for the writ of prohibition alleged that the members of a tribunal had made statements indicating disqualifying bias. The applicant issued subpoenas to the members of the tribunal and to certain journalists who had heard the statements relied upon as exhibiting bias. The Divisional Court struck out the subpoenas directed to the journalists on the ground that they were premature and that the applicant had first to examine the Board members. The Divisional Court held that there was an onus on the party issuing the subpoena to justify it. Writing for this Court, Arnup J.A. rejected that proposition and held that the applicants were entitled to maintain the subpoenas and examine to [sic] the journalists. In a passage that is frequently quoted as correctly stating the law, Arnup J.A. wrote as follows at pp. 191–92:Rule 230 [now r. 39.03] requires no prior leave or order of the Court. It has been suggested in some decisions that it is for the person issuing the subpoena under that Rule to satisfy the Court that his resort to it is reasonable [citations omitted]. We do not think it is appropriate or helpful to declare that when such a subpoena is attacked, an onus of proving justification arises against the party issuing it.
The evidence sought to be elicited must be relevant to the issue on the motion. If it is, there is a prima facie right to resort to Rule 230. That right must not be so exercised as to be an abuse of the process of the Court. There will be such an abuse if the main motion is itself an abuse, as by being frivolous and vexatious, or if the process under rule 230, while ostensibly for the purpose of eliciting relevant evidence, is in fact being used for an ulterior or improper purpose, or if the process is being used in such a way as to be in itself an abuse (as for example, by issuing subpoenas to every member of the House of Commons to prove a defamatory statement shouted out by a spectator in the gallery). The list is not exhaustive. [164] Accordingly, Canada Metal establishes that there is a prima facie right to conduct a r. 39.03 examination in relation to an issue relevant to the application for judicial review, but that the right is subject to certain limits, to which I now turn.
(f) Limits on the Right to Examine Witnesses in an Application for Judicial Review
(i) No Right of Discovery
[165] The first limit applicable to the circumstances of the present case is implicit in the fact that neither the Rules of Civil Procedure nor the Judicial Review Procedure Act provide for examination for discovery on an application for judicial review: Ellis-Don Ltd. v. Ontario (Labour Relations Board) (1992), 1992 CanLII 6320 (ON SC), 95 D.L.R. (4th) 56 at 59 (Div.Ct.), varied on another point (1994), 1994 CanLII 10531 (ON SC), 110 D.L.R. (4th) 731 (Div.Ct.). It follows, in my view, that a r. 39.03 examination may not be used where the purpose is simply to conduct a general discovery. That would amount to an "ulterior or improper purpose" contemplated by Canada Metal and should not be allowed.
[166] I agree with the submission of the Commission that the proposed scope of the examination in the present case runs afoul of this principle. The list of documents to be produced appended to the notice of examination is set out in full in the reasons of Abella J.A. and I will not repeat it here. It is so sweeping and unfocused that it is apparent that the appellant is, in effect, insisting upon a general discovery of the Commission through its registrar, hoping to uncover something that will help her case. The proposed scope of the examination is simply too broad. Subject to what follows with respect to documents or facts that were actually put before the commissioners when they decided the fate of her compliant, the appellant has no general right to rummage through the Commission's files in the hope of uncovering something helpful to her case. For reasons I will explain, however, this is not fatal to the appeal as it seems to me that a more focussed examination should be permitted.
(ii) Deliberative Secrecy
[167] A second limit on the right to resort to a r. 39.03 examination arises from the doctrine of deliberative secrecy. Several cases subsequent to Canada Metal, supra, have dealt with the problem posed by examination of tribunal members or senior officials such as registrars who are privy to the tribunal's decision-making process. These authorities indicate that additional considerations must be taken into account with respect to r. 39.03 examinations in the administrative law context in view of the doctrine of deliberative secrecy. The point was dealt with in Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON SC), 64 O.R. (2d) 8 at 14 (Div.Ct.) and in Ellis-Don, supra, holding that the prima facie right identified in Canada Metal is subject to the qualification that an examination not be used to delve into the actual decision-making process of the tribunal. In Agnew, supra, Campbell J. identified a variety of purposes underlying the doctrine of deliberative secrecy. First is the practical concern that if no limits were imposed, tribunal members would be exposed to unduly burdensome examinations and "would spend more time testifying about their decisions than making them". A second reason is the need for finality. The decision should rest on the reasons given and not on the success or failure of a cross-examination. Third is the need for a shield to protect the process of debate, discussion and compromise inherent in collegial decision-making.
[168] However, it has also been held on the highest authority that limitations on the right to conduct examinations designed to protect the interests of tribunal members must be balanced with the right of the citizen who has been affected by the tribunal's decision to effective judicial review. When applying the principle of deliberative secrecy to protect the integrity of the decision-making process, the courts must take into account the fact that administrative decisions are subject to the inherent power of judicial review. In this regard, a distinction has been drawn between the deliberations of administrative and judicial officers. The deliberative secrecy of administrative decision-makers is not absolute and must yield, where necessary, to the certain overarching principles. As was pointed out by Gonthier J. in Tremblay v. Québec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952 at 965–66, an allegation that the right to natural justice has been infringed may require scrutiny of the decision-making process. Tribunal members do not have an unqualified right to shelter their decision-making process from scrutiny:Additionally, when there is no appeal from the decision of an administrative tribunal, as is the case with the Commission, that decision can only be reviewed in one way: as to legality by judicial review. It is of the very nature of judicial review to examine inter alia the decision maker's decision-making process. Some of the grounds on which a decision may be challenged even concern the internal aspect of that process: for example, was the decision made at the dictate of a third party? Is it the result of the blind application of a previously established directive or policy? All these events accompany the deliberations or are part of them.
Accordingly, it seems to me that by the very nature of the control exercised over their decisions administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals. Of course, secrecy remains the rule, but it may nonetheless be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice. [169] In the present case, the doctrine of deliberative secrecy must be taken into account. The appellant does not seek to examine a member of the Commission as to confidential discussions with other commissioners. She does, however, seek to examine a senior official, privy to the deliberations of the Commission, and to obtain disclosure of facts and arguments that were put before the commissioners by senior staff members and considered by the commissioners in determining the fate of her complaint. I note, however, that the application of deliberative secrecy to these proceedings is not without difficulty. The commissioners apparently conduct their discussions at the same time they entertain submissions and input from staff members and it would seem difficult to identify a discrete, deliberative phase of the process. In view of that practice, it seems to me that the claim of protection for deliberative secrecy has considerable less force than in cases where tribunal members actually retire to consider the case in private. This factor must be added to what was said in Tremblay regarding the qualified protection accorded deliberative secrecy in the administrative law setting in determining the extent to which the Commission can shelter its process from disclosure.
(iii) Factual Foundation
[170] A difficult and delicate issue is the nature of the factual threshold a party must satisfy to conduct a r. 39.03 examination in support of an application for judicial review. I do not accept the argument advanced by the Commission that it is necessary in all cases to establish a "reasonable evidential foundation". Nor do I agree with my colleague Abella J.A.'s conclusion that there is a "heavy onus" or that the party seeking an examination must provide "reasonable, reliable, relevant evidence" to meet the "high threshold". In my view, language of this kind is not apt for a variety of reasons. First, it is inconsistent with Canada Metal, supra, and a long line of cases that have followed: see for example, Fort Norman Explorations Inc. v. McLaughlin (1982), 1982 CanLII 2086 (ON SC), 36 O.R. (2d) 787 (H.C.J.); Iona Corp. v. Aurora (Town) (1991), 1991 CanLII 7278 (ON SC), 3 O.R. (3d) 579 (Gen.Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 CanLII 7258 (ON SC), 27 O.R. (3d) 291 (Gen.Div.). Second, there is a distinct risk that if the standard is expressed in these terms, resort to r. 39.03 would become virtually redundant. Simply put, an applicant for judicial review should not have to prove his or her case before securing access to the very process designed by the Rules of Civil Procedure to adduce evidence. It is also my view that to pitch the test so high in a case such as the present one would be inimical to the inherent power of judicial review and the importance of having a full and accurate record of what transpired before the decision-maker. To fulfil their constitutionally protected mandate of ensuring that statutory procedures are followed in a manner that accords with the principles of natural justice, the superior courts must afford litigants adequate procedures to ensure that all relevant facts are presented. Accordingly, it is sufficient if the proposed examination is focussed on facts relevant to an issue properly raised by way of judicial review. I hardly need to add that facts relevant to an issue properly raised by way of judicial review is a very specific and narrowly circumscribed classification.
[171] There are, no doubt, additional factors that come into play where the examination will impinge upon deliberative secrecy. I do not doubt the importance of the doctrine of deliberative secrecy nor do I question the utility of protecting statutory decision makers from unduly burdensome examinations. However, as stated in Tremblay, supra, against those interests must be balanced the right of the individual to fairness and natural justice. In my view, requiring the applicant for judicial review to satisfy a "heavy onus" by providing "reasonable, reliable, relevant evidence" would effectively deny access to r. 39.03 to anyone who was not already in a position to prove his or her case. I do not agree that such a standard would achieve an appropriate balance. In the case at bar, the motions judge referred to the need to establish a "reasonable evidentiary foundation": see Bettes v. Boeing Canada/de Havilland Division (1992), 1992 CanLII 7789 (ON SC), 10 O.R. (3d) 768 (Gen.Div.). Brown and Evans, supra, at § 6:5620 say perhaps ambiguously that the examination of a decision-maker will be allowed if "a certain threshold of evidence is met". In Waverley (Village) v. Nova Scotia (Minister of Municipal Affairs) (1994), 1994 NSCA 58 (CanLII), 129 N.S.R. (2d) 298 at 303 (C.A.) Freeman J.A. suggested the following standard:... a proper evidentiary foundation must be created, generally by affidavit evidence, to establish that valid reasons exist for concern that there has been a want of natural justice or procedural fairness, or that the discretionary authority has been otherwise exceeded. [172] In view of these authorities and in keeping with what was said in Canada Metal and Tremblay, it seems to me that an applicant for judicial review who seeks to conduct an examination that will touch upon the deliberative secrecy of the decision maker must present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed. I would emphasize that, in view of the importance of the principle of deliberative secrecy in the administrative decision-making process, examinations based on conjecture or mere speculation will not be allowed.
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(v) Summary
[177] I would summarize the effect of these authorities and considerations in the following manner. There is a prima facie right to resort to a r. 39.03 examination in relation to an application for judicial review and there is no onus on the party seeking the examination to prove any facts as a precondition. However, as there is no general right to discovery on a judicial review application, the party serving a notice of examination may be required to specify the scope of the proposed examination. The matters intended to be covered in the examination must be relevant to a ground that would justify judicial review. The evidence must not be excluded by statute. The proposed examination will not be allowed where it is being used for some improper purpose or where the examination or the application for judicial review would constitute an abuse of the process of the court. Where it is proposed to examine a tribunal member or senior tribunal official privy to the decision-making process, the right to conduct the examination must be balanced with the principle of deliberative secrecy. The examination will not be permitted unless the party proposing it can present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed. Examinations based on conjecture or mere speculation will not be allowed. . Rockcliffe Park Residents Association v. City of Ottawa
In Rockcliffe Park Residents Association v. City of Ottawa (Div Court, 2024) the Divisional Court allowed an motion to strike affidavits in the JR record, here where a residents' association applied to challenge the City's "issuance of a heritage permit under section 42 of the Ontario Heritage Act".
Here the court considered motions to strike or limit cross-examination on affidavits (on motions or applications) [under R39.03], here in a JR application:[62] The Applicant’s position is that Rule 39.03 of the Rules of Civil Procedure permits a party to an application for judicial review to subpoena a witness if they have relevant evidence regarding the issues the Court must decide. This right exists in all Applications, including those for judicial review.[20]
[63] Establishing that there is a valid basis for the examination is conceptually distinct from the scope of the examination in my view. Therefore, I will examine each issue separately.
[64] The Ontario Court of Appeal provided useful guidance on the right to conduct a r. 39.03 examination in relation to an issue raised in an application for judicial review. In Payne [SS: 'Payne v. Ontario Human Rights Commission, 2000 Canlii 5731'], the applicant challenged a decision of the Ontario Human Rights Commission (the Commission) dismissing her human rights complaint. In her application for judicial review, the applicant alleged that the Commission dismissed her complaint on the basis of extraneous factors, such as cost or other strategic concerns. The Commission provided no reasons for its decision to dismiss the applicant’s human rights complaint and therefore, she had no way of knowing the real reasons for the dismissal. However, affidavit evidence provided on the motion for an order for the examinations suggested that the Commission may have relied upon such considerations in dismissing the complaint.
[65] In Payne, Sharpe J.A. stated, for the majority, that there is a prima facie right to conduct a r. 39.03 examination in relation to an issue relevant to the application for judicial review, but that the right is subject to the following limits:(i) No Right of Discovery - There is no right to examination for discovery on an application for judicial review.
(ii) Deliberative Secrecy - An examination should not be used to delve into the actual decision-making process of the tribunal. However, this principle must be balanced with the right of the citizen who has been affected by the tribunal's decision to effective judicial review.
(iii) Factual foundation – Sharpe J.A. held that an examination should be permitted in the context of an application for judicial review when the party seeking the examination has presented “some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed”.[21] ....
[72] The Ontario Court of Appeal’s decision in Payne also provides guidance on the scope of a Rule 39.03 examination in the context of an application for judicial review.
[73] The majority in Payne noted that in rendering a decision on the right to examine in the context of the judicial review of a Commission decision, one had to bear in mind that the Commission had been entrusted with exclusive jurisdiction to determine fundamental human rights. That context is very important. As the majority stated: “the rights conferred by the Code are fundamental, quasi-constitutional rights which embody fundamental values of public policy". For that reason, the majority found that it would be entirely inconsistent with a fundamental human right if the Commission were, as it was alleged, to have dismissed a complaint for reasons of cost or because of “strategic concerns”.[24]
[74] Therefore, the majority permitted the Applicant to supplement the record of proceedings on judicial review with evidence obtained on an examination of two Commission witnesses. However, the Court narrowly circumscribed the scope of those examinations as follows:... the appellant is entitled to examine the Registrar as to what documents, facts, considerations, or recommendations not already revealed by the record filed on judicial review were before the commissioners, to inquire as to whether "strategic factors" formed a basis for the commissioners' decision, and to inquire whether there were any reasons for the determination not revealed in the reasons given the appellant.[25] [75] The complexity of the issues in the present case, the rights affected, and the deliberative process are different from those in Payne. The present application for judicial review does not have an impact on the Applicant’s fundamental human rights. This does not mean that the impugned decision(s) is/are unimportant. However, the Applicant does not have a statutory right to participate in the decision-making process[26] and the process itself does not involve a quasi-judicial exercise of power. These factors should be taken into account in determining the scope of the proposed examinations in the present case.
[76] The Applicant provided a non-exhaustive list of approximately 43 issues that they intended to put to the two witnesses during the examinations. A copy of that list is provided at Appendix A of this decision. Applicant counsel objected to the court’s request that she provide the list, arguing that she had discharged the evidentiary burden of demonstrating that “the individuals they seek to examine likely have relevant evidence”.[27] Nothing further was therefore required. I disagree with the Applicant on this point.
[77] The Court of Appeal clearly stated in Payne that “the party serving a notice of examination may be required to specify the scope of the proposed examination”.[28]
[78] I find that the non-exhaustive list of issues provided by the Applicant essentially amounts to an examination for discovery. It is not proportionate to the nature of the decision-making power in issue, the rights of the parties involved and the complexity of the case. I find that it would be an abuse of process to permit the Applicant to engage in the sweeping inquiry they are proposing.
[79] I am therefore circumscribing the scope of the examination. ... . Renée v. 10887609 CANADA INC.
In Renée v. 10887609 CANADA INC. (Div Court, 2023) the Divisional Court considered an RTA landlord's motion to quash an appeal, focussing on motion evidence from affidavits and cross-examination on the affidavit [under R39.01 and R39.02]:[28] Rule 39 of the Rules of Civil Procedure governs evidence on motions and applications. Evidence is permitted by affidavit by virtue of r. 39.01(1). Affidavits based on information and belief are permitted so long as the source of that information is set out in the affidavit: r. 39.01(4). Rule 39.02 provides the opposing party the opportunity to cross-examine on an affidavit filed in support of a motion, subject to the court’s discretion to refuse an adjournment for that purpose where the right to cross-examine has not been exercise with reasonable diligence. . Volk v. Volk
In Volk v. Volk (Ont CA, 2020) the Court of Appeal considered the latitude that a party has on cross-examination on an affidavit:[10] As Borins J. noted in Moyle v. Palmerston Police Services Board, 1995 CanLII 10659 (ON SC), [1995] O.J. No. 627 (Div. Ct.), at para. 11, “the nature of the relief sought on an interlocutory motion often plays a significant role in determining the proper scope of cross-examination”. This is because the cross-examination is meant to serve the fact-finding needs that the motion requires. Accordingly, as Borins J. affirmed, quoting Gale J. from Thomson v. Thomson, [1948] O.W.N 137 (H.C.) at 138, a person cross-examining on an affidavit is not confined to the four corners of the affidavit but may cross-examine on matters that are relevant to the issue in respect of which the affidavit was filed. Therefore, although the cross-examiner is not free to cross-examine on all matters that touch upon the underlying action, if the cross-examiner has a bona fide intention to direct questions to the issues relevant to the resolution of the motion and those questions are fair, the question should be answered, not refused. This includes questions relevant to credibility determinations that are within the competence of the motion judge, which would include questions intended to expose “errors, omissions, inconsistencies, exaggerations or improbabilities of the deponent’s testimony contained in his or her affidavit”: Moyle, at para. 14.
[11] The motion in this case is for the stay of an order to preserve the disputed asset. A motion for a stay pending appeal engages the same general legal standards from RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, which are employed in granting interlocutory injunctions, namely, consideration of whether the appeal raises a serious issue, whether the applicant will suffer irreparable harm if the stay is not granted, and the balance of convenience: see Buccilli v. Pillitteri, [2013] O.J. No. 6110 (C.A.), at para. 34 (Gillese J.A., in Chambers). In Moyle, Borins J. noted that because of the nature of the discretionary remedy to grant in interlocutory injunction, the scope of cross-examination for such motions is apt to be broader than in respect of many motions for other remedies: at para. 18. The same is necessarily true of motions for a stay pending appeal.
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