James Wallbridge

This endorsement addresses a request to seal supplemental affidavits filed in support of a settlement approval.

While the settlement was approved, the court largely denied the request to seal the affidavits, emphasizing the foundational principle of transparency and the open court principle.

The judge found no basis to seal information regarding the merits of the plaintiffs' case post-settlement approval or the terms of counsel's retainer, citing section 137 of the Courts of Justice Act.

The affidavits were ordered to remain sealed for 60 days, with a requirement for a formal application, served on all parties and the media, to extend the sealing order.

The defendants, Sudbury Trail Plan Association (STPA) and Shelley Talevi, brought motions seeking leave to bring further motions, an order compelling the plaintiff Gaetan Lamothe to undergo four independent medical assessments, and leave to deliver late expert reports.

The plaintiffs opposed these motions.

The court dismissed all motions, finding that the defendants failed to provide a reasonable explanation for their significant delay in seeking the assessments and filing reports, which occurred almost four years after the plaintiffs' expert reports and after two fixed trial dates had been set.

The court determined that the alleged "substantial or unexpected changes" in the plaintiff's condition were not sufficient to justify the delay and that granting the motions would cause undue prejudice to the plaintiffs by necessitating an adjournment of the lengthy jury trial, leading to lost pre-trial income and statutory deductible indexation.

The moving party, Canadian National Railway Company, brought a motion for leave to appeal the order of Gordon J. dated April 26, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding parties.

On a Crown appeal arising from a pre-trial constitutional ruling, the Court held that the reverse onus in s. 394(1)(b) of the Criminal Code violated the presumption of innocence in s. 11(d) of the Charter.

Applying the Oakes framework, the Court accepted that deterring theft of precious metal ore was a pressing and substantial objective and that some burden on the accused was rationally connected to that objective.

However, imposing a legal burden on the accused was not minimally impairing and was not proportionate, because an evidentiary burden would substantially achieve Parliament's purpose with far less intrusion on the presumption of innocence.

The appeal was allowed in part, the stay remained lifted, and the provision was modified to impose only an evidentiary burden.