Evidence regarding issue of public importance on leave application

Ontario (Transportation) v. 1520658 Ontario Inc., 2010 ONCA 32, released today, considers:

 

“Should a party seeking leave to appeal to this court be entitled to file evidence directed at the issue of public importance?”

 

The Court says Iness v. Canada Mortgage and Housing Corp. (2002), 62 O.R. (3d) 255 (C.A.) governs.

 

In Iness the Court confirmed that this court may grant leave to file affidavit evidence on a motion for leave to appeal in appropriate circumstances.  At para. 11, the Court said:

 

Any affidavit submitted on the issue of public importance should limit itself to factual information. Otherwise, expert legal opinion to the effect that the issue between the parties raises questions of public importance is inappropriate as this is the very issue for the court to decide on the leave application.

 

The Court continued in Ontario (Transportation) v. 1520658 Ontario Inc. says:

 

[14]         In other words, an affidavit submitted on a motion for leave to appeal must only be directed toward facts that speak to the public importance of the issues raised.  It must not contain opinion that the proposed appeal raises issues of public importance, since that is the very question to be answered on the motion for leave.

 

…

[17]         Weiler J.A. concluded that “[i]n the absence of any rule expressly permitting the filing of an affidavit concerning the issue of the public importance of an appeal … the matter is discretionary and leave must be obtained”.  In my view, none of the submissions advanced by 152 compel me to conclude that Iness is wrongly decided. To the contrary, I agree with her reasoning and her conclusions.

 

[18]         Finally, and importantly, at para. 15 of Iness Weiler J.A. described the procedure to be followed where a party seeks to adduce evidence of public importance on a motion for leave to appeal to this court.  Given the way in which this matter proceeded before me, I believe it is worth repeating:

 

[T]he party seeking to adduce evidence on the matter of public importance should file a motion to admit evidence on the matter and a supporting affidavit with the application for leave to appeal.  Similarly, any response to the affidavit should be filed with the responding materials on the leave motion.  The panel hearing the application for leave to appeal would then consider the motion to admit the evidence on the issue of public importance when considering the leave application.  Motions to strike affidavits and motions to cross-examine on such affidavit material would properly be made to the chambers judge.