These proceedings began with an application by the City of Barrie to annex parts of the Townships of Innisfil, Oro and Vespra. At a hearing of the Ontario Municipal Board, the projected population of Barrie in 2011 (150,000) assumed importance. While evidence was being led by Innisfil on the issue, the Minister forwarded a letter, through a departmental representative, to the Board advising it of the population allocations in a planning study prepared for the region. The Board ruled that it was bound by government policy as communicated in the letter and would not permit cross-examination on the letter. The Board issued its annexation order on the basis of the government's population figures.
The Divisional Court, on appeal, found that the Board had denied Innisfil natural justice and had therefore acted beyond its jurisdiction. The Court of Appeal reversed the Divisional Court, but agreed that the Board had committed an error of law, albeit within its jurisdiction, by refusing to hear evidence of forecast population before giving the Minister's letter preponderant weight. Innisfil appealed to the Supreme Court.
- What does it mean for cross-examination to be "reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding"?
Estey, delivering the judgment of the court, first turned to the right of Innisfil to cross-examine a representative of the Minister on the letter. It was not for the appellate court to withhold the right to cross-examination because in its judgment it was doubtful, or even impossible, in the court's view, for the appellant to advance its case by such cross-examination. The decision to exercise the right was solely that of the holder of the right.
The relationship of "independent" agencies to the executive branch of government, in so far as that relationship affected the procedural rights of the parties before the tribunal, could only be determined by reference to the agency's parent statute, and other relevant statutes or common law prescribing procedural norms. It was not for the court to go behind the ground rules or modify them because of perceived far-reaching effects. If on its face an agency were held out to be "independent" of the executive, it remained that way for all purposes until the Legislature altered the position and procedure of the agency. A court would require the clearest statutory direction to enable the executive branch to give binding policy directions to an administrative tribunal and to make such directions immune from cross-examination. Even though the role assigned the Board in the legislation as drafted could entail some conflict between the administrative result and certain government policies, the remedy did not lie in the Board and Court denying the citizen his statutory right to oppose annexation.