Executive Summary: Key Legal and Evidentiary Issues

• Scope of admissible evidence on judicial review, including when affidavit material beyond the municipal record can properly be received.
• Tension between limiting an overly voluminous, collateral application record and allowing the applicant to argue closed-mind bias and procedural unfairness.
• Dispute over whether materials not before Council (e.g., resident emails, technical reports, other projects) can be used to show the City’s alleged closed mind and improperly restricted record.
• Challenges to affidavit content on grounds of irrelevance, hearsay, unattributed documents, post-decision events, and improper argument rather than facts.
• Extent to which evidence about other City projects and shelters may be used to support an alleged pattern of bias, while avoiding turning the case into a de facto review of multiple unrelated projects.
• Costs consequences of a motion to strike where the moving party (the City) is largely, but not entirely, successful in narrowing the record.

Background and facts of the dispute
Agneca Inc. is a community organization that brought an application for judicial review challenging a decision of the City of Toronto to amend a zoning bylaw. On April 24, 2025, City Council amended the zoning bylaw to permit the construction of supportive rental housing at 7–9 Wardlaw Crescent. Agneca opposes this development and alleges that the City approached the decision and required consultation with a “closed mind.” It claims the project is one of more than twenty similar supportive housing projects where the City has allegedly failed to consult properly, adopted a closed-minded approach to decision-making, and improperly limited the record put before Council. The City, for its part, prepared a formal Record of Proceedings consisting of the materials actually before Council when it adopted the bylaw amendment. That record is 83 pages and includes the notice of public meeting, staff reports, video recordings of proceedings before the Planning and Housing Committee and Council, and a list of all speakers.

The application for judicial review and the evidentiary battle
The judicial review is focused on the legality of the April 24, 2025 zoning bylaw amendment for 7–9 Wardlaw Crescent. Agneca acknowledges that this is the only decision formally under review and the only one that can be affected by the application. However, it seeks to support its allegation of City bias and a “closed mind” by reference to a pattern of behaviour across numerous other City projects, including other shelters and supportive housing developments. To that end, Agneca filed an extensive application record of 1,127 pages, including numerous affidavits and exhibits that range well beyond the City’s Record of Proceedings. The material covers not only the Wardlaw Crescent project but also other developments such as a Sheppard Avenue West shelter, a Gerrard Street East shelter, and a modular homes project that allegedly destroyed treed parklands. Many of the affidavits contained residents’ statements mixing facts, opinion, argument, and commentary on the City’s decision-making and consultation practices. The City responded by bringing a motion to strike large portions of this application record, arguing that the impugned materials were irrelevant, improper, inflammatory, or an attempt to expand the judicial review beyond the decision actually under challenge.

Governing principles for admissible evidence on judicial review
The Divisional Court began by reiterating core administrative law principles about the record on judicial review. As a general rule, an application for judicial review is decided on the basis of the record before the initial decision-maker. In exceptional circumstances, limited affidavit evidence may be permitted to supplement the record. The court identified three recognized exceptions: background evidence that does not go to the merits; evidence to show a complete absence of evidence before the tribunal on a point; and evidence going to natural justice, procedural fairness, improper purpose, or fraud that could not have been put before the original decision-maker, following Keeprite Workers’ Independent Union v. Keeprite Products Ltd. Affidavit evidence must also satisfy the usual admissibility rules for applications. The court confirmed that a motion judge can, in advance of the main hearing, determine what evidence will form part of the record, particularly where a voluminous and potentially inadmissible record risks forcing the respondent to assemble an equally voluminous response and distracting the panel with collateral issues. In exercising this gatekeeping role, the motion judge must balance the need to define and streamline the record against the panel’s ultimate role in judging the tenability of the applicant’s grounds and the supporting evidence. Where relevance of certain material is uncertain, it may be left to the application panel.

Agneca’s preliminary objections to the City’s motion
Agneca first raised procedural objections to how the City brought its motion. It argued that the City should have re-filed Agneca’s affidavit record as part of the City’s motion record so that the impugned evidence would be properly before the court, and that the City’s Record of Proceedings should have been sworn by affidavit. The court rejected both points. It was not necessary for the City to reproduce the 1,127-page application record in its motion record in order to refer to it on the motion. Nor had the City improperly filed its Record of Proceedings: that record, which reflected the only materials before Council at the time of the bylaw decision, was properly constituted without needing to be sworn in affidavit form. With those objections dismissed, the court turned to the substance of the evidentiary disputes.

Treatment of the Schlosser affidavit
The affidavit of Tamara Schlosser, vice-chair of Agneca Inc., was central to the applicant’s efforts to broaden the evidentiary record. Her 12-page affidavit attached 40 exhibits, many of which were not in the City’s Record of Proceedings. The City challenged multiple paragraphs and exhibits. For paragraphs dealing with the adjacent property and earlier City communications suggesting that 7–9 Wardlaw Crescent would be used as green space, the court allowed factual portions to stand but struck the part of paragraph 11 that lapsed into legal argument, such as assertions that the City’s conduct “directly contravenes the principles of natural justice.” Similarly, the court preserved paragraph 12, which referred to a City statement that a “third and final phase” would include community greenspace on the Wardlaw properties; the panel would later decide what weight, if any, to give that representation. The court permitted paragraph 22 and an attached FAQ for the subject property to remain, as Agneca sought to rely on it to show the City had pre-decided to use the land for supportive housing before any meetings, supporting its “closed mind” theory. However, it struck the penultimate sentence of paragraph 22 as improper legal argument. Other parts of the Schlosser affidavit were excluded outright. A purported summarized transcript of an April 10, 2025 Planning and Housing Committee meeting, of unknown authorship and containing editorial “key details,” was struck because the official video in the Record of Proceedings was the best evidence and the summary’s provenance and reliability were suspect. A blog post from Public Progress, a supportive-housing-focused outreach contractor retained by the City, and Ms. Schlosser’s criticisms of its “moral commentary,” were deemed irrelevant and inflammatory, since the fact of the City retaining Public Progress was undisputed and anything beyond that did not assist the issues on review. Emails and disputes between Public Progress and Agneca that occurred after the April 24, 2025 decision were also struck as irrelevant to the decision under review. Unattributed photographs of demolition at 7–9 Wardlaw Crescent, which post-dated the decision, were removed as irrelevant. By contrast, a compilation of resident emails sent to the mayor, local councillor, City staff, and the Premier was largely permitted, subject to refinement. Agneca argued these emails—many of which preceded the April 24, 2025 Council meeting—should have been before Council and that the City could not both constrict the Council record and then rely on that constriction to exclude the very materials it allegedly withheld. The court accepted that this was a tenable position for the panel to consider, and allowed the exhibit to remain, on condition that Agneca refile it to remove emails sent after the April 24 meeting. Finally, an exhibit targeting a community member who spoke at the public meeting and who happened to be a City employee was struck. The court held that private citizens are entitled to speak as residents without having their motives attacked based solely on their employment, and found these allegations irrelevant and inflammatory. The court also allowed to stand a group of technical documents—geotechnical reports, architectural plans, an arborist report, and other studies relating to the Wardlaw site—on the basis that Agneca intended to argue Council improperly failed to have these materials before it, leading to a decision based on incomplete information. The admissibility and weight of those documents would be for the panel to decide.

Evidence about other City projects and the Chester affidavit
A key strategic theme for Agneca was to use evidence from other City projects to paint a pattern of closed-mind decision-making and insufficient consultation. The affidavit of Dianne Chester, a member of a community group that had opposed a different City development, exemplified this approach. She annexed presentations and communications made by that community group in their own dispute with the City. The court accepted that Agneca might point to other projects to illustrate an alleged pattern of bias, but emphasized that the application must not devolve into a detailed, project-by-project review of multiple developments. Affidavits must contain facts, not argument, and must be tied to the limited purpose of illustrating a pattern, rather than relitigating different developments. Accordingly, the court significantly trimmed Ms. Chester’s affidavit. It struck paragraphs 3–8, the argumentative portion of paragraph 9 starting with “This failure to engage,” paragraph 10, paragraphs 12–15, and 18–31, along with associated exhibits. What remained was narrowly confined to the potential pattern-of-behaviour theory without inviting a wholesale collateral inquiry into other projects.

Affidavits from other residents and their refinement
Several other resident affidavits followed a similar format: a sworn statement attaching a personal narrative about experience with another City shelter or housing project and offering both factual and argumentative commentary. The court was careful to distinguish between permissible, relevant facts, and inadmissible opinion or argument. The affidavit of Pat Giglio, concerning a proposed shelter on Sheppard Avenue West, expressed his concerns and noted a lack of consultation. The court concluded that, in its current form, the affidavit should be struck, but it granted leave to refile a narrower affidavit that properly identifies Mr. Giglio’s connection to the Sheppard Avenue West site and includes only the factual paragraph describing the absence of consultation. Similarly, the affidavit of George Teichman, also about the Sheppard Avenue West shelter, included both factual description and extensive argument about the wisdom of the project. His affidavit was struck, with leave to file a new, sworn affidavit limited to factual content up to a point in his statement ending with the phrase “fait accompli.” The affidavit of Amanda Schwartz, again dealing with the Sheppard Avenue West shelter, was struck entirely. The court found that her account was highly detailed and project-specific—covering breakout rooms, the Q&A format, survey design, and her experience with a project director—and that there was no portion that could be sensibly extracted to provide general, relevant evidence for the Wardlaw Crescent review. The affidavit of Dale Fitzgerald regarding a proposed Gerrard Street East shelter was also largely argumentative. It was struck, but the court allowed Agneca to refile an affidavit from him that both identifies his connection to the Gerrard Street project and swears only to a specific factual paragraph describing the selection of the shelter location without prior community engagement and the community’s concerns about how the shelter could be successful. Finally, the affidavit of Aldo Di Felice related to a modular homes project that allegedly destroyed treed parklands. While somewhat vague, it again mixed concerns about the project with argument. The court struck it but permitted Agneca to file a pared-down affidavit identifying his connection to the property and swearing only to a narrow portion of his statement, limited to dated factual content and the first two sentences of the next paragraph. This careful pruning across multiple affidavits illustrates the court’s effort to allow some limited, pattern-related factual evidence about other projects, while excluding opinion, argument, and excessive detail that would divert the judicial review into mini-inquiries about other developments.

No insurance or policy wording issues
Although this case involves “supportive rental housing,” there is no discussion of insurance policy terms, contract clauses, or similar policy wording in the decision. The legal issues revolve around municipal planning powers under the Planning Act, the City’s consultation and decision-making process, and the administrative law rules governing the record and admissible evidence on judicial review. As such, there are no insurance policy clauses or comparable contractual provisions at issue that require analysis.

Outcome of the motion and financial consequences
The court’s disposition carefully enumerated the passages and exhibits struck from each affidavit and set out the conditions for any re-filed evidence that Agneca might submit. For Ms. Schlosser, certain argumentative passages were excised and several entire paragraphs and exhibits—such as the unofficial meeting transcript, blog post, demolition photographs, and post-decision disputes—were removed. For Ms. Chester and the various residents, large parts or the entirety of their affidavits were struck, but with targeted leave to refile narrower, fact-focused affidavits in some cases. Overall, the City’s motion to strike was largely successful in significantly narrowing Agneca’s application record and confining the judicial review to relevant, admissible material tied to the Wardlaw Crescent bylaw decision and the limited “pattern” theory. On costs, the parties had agreed that the unsuccessful party on the motion would pay the successful party $9,000 inclusive of disbursements and HST. Recognizing that the City had been “largely, but not wholly, successful” rather than completely successful, the court exercised its discretion and ordered Agneca Inc. to pay the City of Toronto $7,000 in costs, inclusive of disbursements and HST, as the net monetary consequence of this interlocutory decision in favour of the City.