CITATION: Nassab v. ErinoakKids, 2016 ONSC 4265

COURT FILE NO.: DC-13-137-JR

DATE: 2016 06 28

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Sebastian Nassab by his Litigation Guardian Sen Ozunal v. ErinoakKids

BEFORE: Fragomeni, J.

COUNSEL: Cara Zacks, for ErinoakKids

James Mutoigo, for Sebastian Nassab by his Litigation Guardian Sen Ozunal

HEARD: March 4, 2016

E N D O R S E M E N T

[1] The Respondent, ErinoakKids, (“EOK”) is the moving party at the motion heard by me on March 4, 2016. EOK seeks the following relief:

1. an order striking the Affidavits of the Applicant’s mother and litigation guardian, Ms. Ozunal (“Ozunal”) sworn on November 8, 2013 and November 7, 2014, without leave to file additional affidavit evidence and dismissing the Application due to Ozunal’s failure to attend her cross-examination;

2. in the alternative, an order striking out paragraphs 6, 18 and 24 through 29 of Ozunal’s November 8, 2013 Affidavit and striking out paragraphs 2, 4 through 6, and 11 through 14 of Ozunal’s November 7, 2014 Affidavit, without leave to amend and an Order dismissing the Application on the basis that it lacks merit and evidentiary support; and

3. in the further alternative EOK moves for an order compelling Ms. Ozunal to attend a cross-examination.

THE APPLICATION

[2] The Notice of Application for Judicial Review was issued on December 13, 2013. In her application Ozunal seeks the following relief:

(a) an Order quashing the decision of the Respondent, EOK, dated August 8, 2012 that the Applicant is ineligible for Intensive Behavioural Intervention (“IBI”) funding for autism;

(b) an Order directing EOK to re-assess the Applicant’s eligibility for IBI funding for autism according to the Autism Intervention Program Guidelines; and

(c) an Order that the Applicant’s Ontario School Board Records be admitted in this application.

[3] In support of this application the Applicant relies on the Affidavits of Ozunal sworn November 8, 2013 and November 7, 2014.

[4] The Judicial Review is scheduled to be heard by the Divisional Court held in Brampton at the October 2016 sittings.

Issue #1: Striking the Affidavits sworn November 8, 2013 and November 7, 2014 and dismissing the Application for Failure to Attend Cross-Examinations

[5] I am not satisfied that the Affidavits filed in support of the application should be struck due to Ozunal’s failure to attend her cross-examination.

[6] I am satisfied that the appropriate response for Ozunal’s non-attendance is to issue an order compelling her to attend at cross-examination.

[7] In order to give context to the issue relating to Ozunal’s non-attendance for cross-examination it is useful to review the chronology of events leading up to that point.

[8] By letter dated July 30, 2014, Mr. Hanna, counsel for EOK, advised Mr. Mutoigo, counsel for the Applicant, of his intention to cross-examine Ozunal. The letter sets out the following:

“We enclose ErinoakKids’ Responding Application Record, which is hereby served upon you pursuant to the Rules of Civil Procedure.

Please advise me of whether your client intends to file a reply affidavit(s), and if so, when you anticipate doing so. Either way, we will need to coordinate mutually convenient dates for the cross-examinations on the affidavits (I intend to cross-examine Ms. Ozunal, and ask you to advise if you intend to cross-examine Ms. Eaton and/or Dr. Factor), the exchange of facta and the hearing date for the application.

I look forward to hearing from you regarding the above.”

[9] On August 27, 2014, Mr. Mutoigo advised Mr. Hanna as follows:

“I acknowledge receiving the Responding Application Record.

I intend to cross-examine both Ms. Eaton and Dr. Factor. Ms. Ozunal will also be available for cross-examination. I propose the next six weeks or so, till mid-October, for cross-examination.

We intend to file (a) replying affidavit(s) by the end of October. We can exchange facta and file the records with certificates of readiness in November this year, ahead of the one year deadline of December 11, 2014.”

[10] As cross-examinations had to be scheduled after all affidavits had been exchanged, Mr. Hanna suggested cross-examinations be scheduled after Mr. Mutoigo served his reply affidavits.

[11] Mr. Mutoigo served his reply affidavits on November 19, 2014.

[12] On December 19, 2014, Mr. Hanna sent Mr. Mutoigo the following email:

“I have now had an opportunity to review your client’s reply affidavit. I anticipate that one of my witnesses will swear a very short responding affidavit to a few points Ms. Ozunal makes in her reply, and I should be able to deliver that to you in January.

Once that responding affidavit is delivered, we can then conduct cross-examinations. I will need to examine Ms. Ozunal, and you previously told me that you intend to examine both Ms. Eaton and Dr. Factor. I suggest that we find two mutually convenient back-to-back days to conduct the crosses in either February or March of next year. I have asked Ms. Eaton and Dr. Factor to advise me of their availability during those months and will let you know once I have heard from them. In the meantime, please let me know your and Ms. Ozunal’s availability for the same so that we can schedule the cross-examinations. Further, I suggest that we use Victory Verbatim as the reporter. Let me know if that is agreeable to you.

I look forward to hearing from you regarding the above.”

[13] On March 5, 2015, Mr. Hanna advised Mr. Mutoigo of his available dates for cross-examination in an email which set out the following:

“Further to my email of December 19, I attach a copy of Dr. Factor’s reply affidavit sworn on February 26, 2015 which is hereby served upon you pursuant to the Rules of Civil Procedure. Please acknowledge receipt by return email.

With respect to scheduling cross-examinations, I currently can be available to examine Ms. Ozunal on any of the following dates: March 13, the week of March 30, April 6 – 8, 10 and the week of April 13. Ms. Eaton and Dr. Factor can presently make themselves available to be cross-examined on any of the following dates:

Ms. Eaton: week of March 30, April 7 – 8, 10 and the week of April 13. She is also generally available in May (except May 1 and 8);

Dr. Factor: week of March 30, April 6 – 8, 10 and the week of April 13. He can also be available in May (except May 11), and has more availability on Wednesdays and Thursdays than other days during the week.

Please get back to me within the next few days with your client’s availability to be cross-examined on the above-noted dates (I anticipate requiring a couple of hours), as well as the dates on which you wish to examine Ms. Eaton and Dr. Factor. Also, please confirm if you are agreeable to using Victory Verbatim at 222 Bay St Suite 900 for the examinations, as I previously suggested.

I look forward to hearing back from you shortly.”

[14] On March 11, 2014, Mr. Mutoigo advised that the cross-examinations could not take place as he had filed a Certificate of Perfection just ahead of the one year requirement of Rules 68.05 and 68.06 to avoid an administrative dismissal of the Application for delay.

[15] On March 12, 2015, Mr. Hanna advised Mr. Mutoigo as follows:

“That, however, does not preclude me from cross-examining your client. I informed you long ago that it was my intention to do so, and as you know, the Rules require that I serve all affidavits upon which I will be relying before conducting cross-examinations. Accordingly, I needed to serve Dr. Factor’s reply affidavit (which was sworn in response to the materials you served in November) before cross-examining your client. Having now served Dr. Factor’s reply affidavit, I intend to proceed with my cross-examination of Ms. Ozunal.”

[16] A further email was sent by Mr. Hanna on March 19, 2015, as he had not received a response from Mr. Mutoigo.

[17] On March 24, 2015, Mr. Hanna sent Mr. Mutoigo the following fax:

“I write further to my email of March 11, 2015 (and prior emails in which I advised you that I intend to cross-examine Ms. Ozunal), as well as my emails dated March 12 and 19 and the voicemail I left for you earlier today, to which you did not respond, regarding your client’s availability to be cross-examined.

Having not heard from you in respect of the above, I am forced to select a date for Ms. Ozunal’s cross-examination unilaterally. Accordingly, I will be cross-examining Ms. Ozunal on April 10, 2015 and I attach a Notice of Examination in that regard, which is hereby served upon you pursuant to the Rules of Civil Procedure.

I trust that your client will attend on April 10 as required. If she does not, ErinokKids will seek the appropriate remedy for her failure to attend.”

[18] On April 7, 2015, Mr. Mutoigo sent a letter to Mr. Hanna advising him the Ozunal would not attend the cross-examination accusing Mr. Hanna of undue delay.

[19] On April 7, 2015, Mr. Hanna wrote to Mr. Mutoigo as follows:

“I have just received your fax, attached, in response to my email of earlier today.

With respect, it is simply not open to your client to not attend the cross-examination on Friday, for the reasons articulated in your letter or otherwise. I disagree with all of the reasons to which you refer in your letter. With respect again, they are simply non-sensical.

I actually filed my initial responding record with the court long ago. The only affidavit I have not yet filed is Dr. Factor’s reply affidavit from February of this year, which I will file in due course. Your reference to rule 68.04(4) is not apt, and even if it were, it provides no basis for your client to refuse to attend the cross-examination.

I also have advised you from the beginning that I intended to cross-examine your client. As you know, we had lengthy settlement discussions over the course of last year. As you also know, I could not conduct a cross-examination until after I served all affidavits upon which my client will rely at the hearing – that is, until after I served Dr. Factor’s reply affidavit of February 26 (which replied to the responding affidavit your client swore in November). The respondent is not guilty of any delay, much less undue delay as you put it in your letter.

I strongly urge you and your client to reconsider your position and attend the cross-examination on Friday.

I will be attending, and if you fail to do so, I will obtain a certificate of non-attendance from the reporter. As I previously advised, I will also seek appropriate redress for the non-attendance. I have no doubt you are aware of the sanctions prescribed by Rule 34.15 if your client fails to comply with the notice of examination, but I suggest you advise your client that the court may dismiss her proceeding altogether, strike out all of her affidavits and make any other order as is just. I would have thought that she would not want any of those possible results.

Please reconsider and confirm that you and your client will attend on Friday.”

Does the Filing of a Certificate of Perfection Bar Cross-Examinations?

[20] Pursuant to Rule 68.05 of the Rules, the Applicant shall file a Certificate of Perfection with the Application Record stating that all material required to be filed by the applicant for the hearing of the application has been filed.

[21] Rules 68.05 and 68.06 of the Rules set out the following:

68.05 (1) The applicant shall file with the application record a certificate of perfection,

(a) stating that all the material required to be filed by the applicant for the hearing of the application has been filed; and

(b) setting out, with respect to every party to the application and any other person entitled by statute or by an order under rule 13.03 (intervention) to be heard on the application,

(i) the name, address and telephone number of the party’s or other person’s lawyer, or

(ii) the name, address for service and telephone number of the party or other person, if acting in person. O. Reg. 260/05, s. 15.

(2) When the certificate of perfection has been filed, the registrar shall place the application on a list for hearing and give notice of listing for hearing (Form 68B) by mail to the parties and the other persons named in the certificate of perfection. R.R.O. 1990, Reg. 194, r. 68.05 (2).

68.06 (1) Where the applicant has not,

(a) delivered an application record and factum within the time prescribed by subrule 68.04 (1); or

(b) filed a certificate of perfection as required by subrule 68.05 (1),

the respondent may make a motion to the registrar at the place of hearing, on ten days notice to the applicant, to have the application dismissed for delay. R.R.O. 1990, Reg. 194, r. 68.06 (1).

(2) Where the applicant has not delivered an application record and factum and filed a certificate of perfection within one year after the application was commenced, the registrar may serve notice on the applicant that the application will be dismissed for delay unless the applicant delivers an application record and factum and files a certificate of perfection within ten days after service of notice. R.R.O. 1990, Reg. 194, r. 68.06 (2).

Registrar to Dismiss where Default not Cured

(3) Where the applicant does not cure the default within ten days after service of a notice under subrule (1) or (2) or such longer period as a judge of the Divisional Court allows, the registrar shall make an order in Form 68C dismissing the application for delay, with costs fixed at $750, despite rule 58.13. R.R.O. 1990, Reg. 194, r. 68.06 (3); O. Reg. 394/09, s. 31.

Review of Registrar’s Dismissal

(4) A party affected by an order of the registrar under subrule (3) may make a motion under subrule 61.16 (5) to set aside or vary the order. R.R.O. 1990, Reg. 194, r. 68.06 (4).

[22] The Applicant argues that EOK refused the request of counsel for the Applicant to arrange cross-examinations before the one year deadline and as such it now barred from cross-examining Ozunal.

[23] EOK relies on the decision in 11911260 Ontario Ltd. v. Thunder Bay (City), 2006 CarswellOnt 3892, at para. 27:

27. Timeline:

(1) The parties will each delivery its consent to the release of the OMB costs orders arising out of Decision 0251 within 24 hours of the receipt of these reasons;

(2) Foaming Brush will serve its Application for Judicial Review and file and serve its Application Record, Factum and Certificate of Perfection within 15 days after the receipt by it of the OMB costs order;

(3) The Respondent’s Application Record and Factum are [to] be filed and served 10 days after its receipt [of] the Foaming Brush materials;

(4) Cross-examinations, if any, are to be completed 30 days after materials are exchanged and filings completed;

(5) Subject to the refusal by Foaming Brush, on reasonable grounds, the AJR is to be heard after completion of cross-exanimations a[s] soon as reasonably possible at a sittings of the Divisional Court anywhere in Ontario at which the AJR can be accommodated.

[24] In this case cross-examinations did take place after the Certificate of Perfection was filed.

[25] EOK sets out the following at para. 32 of its factum:

Mr. Mutoigo’s position that EOK is barred from cross-examining Ms. Ozunal after the Certificate of Perfection is filed is untenable. If a respondent could not cross-examine an applicant’s deponent after the filing of a the Certificate of Perfection, this would create a perverse incentive for applicants to strategically delay serving any reply materials until just before filing the Certificate of Perfection, in order to evade cross-examination of the applicant’s deponents. In this case, Mr. Mutoigo filed Ms. Ozunal’s reply affidavit on November 19, 2014, almost four months after receiving EOK’s responding materials and just before his Certificate of Perfection was due.

[26] I agree with the position set out by EOK. Further the record does not support the Applicant’s position that EOK did not proceed with reasonable diligence in arranging to cross-examine Ozunal. Counsel for EOK stated his intention to cross-examine Ozunal as early as July 30, 2014. EOK began suggesting dates for cross-examination in December 2014 after receiving Ozunal’s November 2014 Affidavit.

[27] Pursuant to Rule 39.02(1) it was necessary that it serve every affidavit on which it intends to rely before it could cross-examine an opposing party. It was necessary to serve Dr. Factor’s reply affidavit before EOK could cross-examine Ozunal.

[28] In all of those circumstances an order shall issue compelling Ms. Ozunal to attend for cross-examinations within the next 30 days on a date convenient to counsel and Ms. Ozunal.

[29] I am not satisfied, therefore, the Application should be dismissed on this basis.

Issue #2: Striking out numerous paragraphs in the 2013 and 2014 Affidavits of the Applicant’s mother and Litigation Guardians.

[30] The Motion to Strike paragraphs from the Affidavits is premature. According to Perell and Morden on The Law of Civil Procedure in Ontario, “typically a motion to strike paragraphs from an affidavit is made at the same time as the primary motion. The general rule is that it is for the court that hears the motion to determine whether material should be struck from the affidavit, and a pre-emptive motion should be brought only in the clearest cases.” (Jacobs v. Plaque El Agua Development Limited Partnership, 2005 35784 (ON SC), [2005] O.J. No. 4238.

[31] In 1196303 Ontario Inc. v. Glen Grove Suites Inc. [2012] O.J. No. 378 (S.C.J.) Justice D. M. Brown sets out the following at paras. 12-21:

[12] As a general rule the proper time and place to request a court to strike out, in whole or in part, an affidavit filed in support of a motion or application is on the return of the main motion or application. I reach this conclusion for two reasons.

[13] First, issues of the admissibility of evidence or the weight to be given to evidence on a motion or application fall for determination by the judge hearing the motion or application. When one party seeks to determine legal rights relying only on a written record, such as those used on motions or applications, the hearing judge must act as the “gate-keeper” on issues of competency and admissibility that arise from the written record in the same manner as he or she would when sitting as a trial judge. Competency is a threshold issue in respect of the receipt of the evidence of a witness. As to any consideration of admissibility in light of other principles of evidence, where, as in this case, one party relies on the principled exception to the hearsay rule in support of the admissibility of an affidavit, the hearing judge may be required to take into account a variety of factors, possibly considering other evidence filed on the motion or application, to determine the issue of admissibility.

[14] Similarly, a motions or application judge must remain alive to issues about reliability and credibility arising from evidence filed on a motion or application. Sometimes the written record gives rise to disputes on material facts, and the Rules of Civil Procedure empower both a motions judge and application judge to direct a trial of issues in those circumstances. On motions for summary judgment the “new” Rule 20 clearly reposes in the motions judge the power to weigh evidence and evaluate the credibility of a deponent.

[15] In light of the duty of the motions or application judge to determine issues of competency and admissibility, as well as to ascertain whether disputed issues of credibility arise or, in the case of summary judgment motions, possibly determine issues of credibility, it is important that the hearing judge be asked to consider all evidentiary issues concerning competency, admissibility and weight. In my view it would be inappropriate for a judge who will not hear the motion to purport to bind the hearing judge by determining on a limited and incomplete record issues concerning the receipt or admissibility of evidence prior to the hearing of the motion or application.

[16] This view accords in large part with that expounded by the learned authors of The Law of Civil Procedure in Ontario, First Edition, where they write:

Typically, a motion to strike paragraphs from an affidavit is made at the same time as the primary motion. The general rule is that it is for the court that hears the motion to determine whether material should be struck from an affidavit, and a pre-emptive motion should be brought only in the clearest cases.

I query whether the court should hold out the opportunity of bringing a pre-emptive motion to strike in “the clearest cases” because inevitably the clarity of a case depends on who is the beholder, and advocates paid to promote one side of a case are not dispassionate beholders.

[17] Which brings me to the second reason for stating that the proper time and place to bring a motion to strike out an affidavit is on the return of the main motion or application. It remains a fundamental objective of Ontario’s civil litigation system to secure the most expeditious and least expensive determination of every civil proceeding on its merits. Unnecessary interlocutory motions stand as a major impediment to securing that objective. At the same time judicial resources in this Court are scarce, so limited judicial time should be used, as much as possible, to determine the merits of a matter, not to put out unnecessary interlocutory brush fires.

[18] As I have written before, civil litigation in the Toronto Region is plagued with a disease – the cult of the interlocutory motion. The attitude of far too many in the local bar is why waste time litigating the merits of a matter when the shiny apple of an interlocutory motion beckons. I stress that this is a Toronto problem; most counsel who practice outside of this city have put in place co-operative mechanisms which minimize the resort to interlocutory motions.

[19] But, as long as the cult of the interlocutory motion continues to weave its spell in the Toronto Region, in my view the courts of this Region should not take any steps to encourage or condone the bringing of unnecessary interlocutory motions, especially on process-related matters. So, while the learned authors of The Law of Civil Procedure in Ontario would leave open the door a crack to pre-emptive motions to strike out affidavits in “the clearest cases”, in my view to open the door a crack would be to invite the local bar to drive the proverbial Mack truck through it. Although the process of civil litigation knows no absolutes and always requires some built-in flexibility, I think the better general rule is that pre-emptive motions to strike out affidavits, in whole or in part, should only be brought in the rarest and most extraordinary of cases, with the general rule applicable to 99.9% of the cases being that such motions should be brought before the judge hearing the main motion or application.

[20] In the present case the moving party actually wanted to argue the motion to strike at the return of the main motions but, as a result of the position taken by Sylvia, this pre-emptive motion was scheduled at the direction of the court. Given that the parties prepared for this motion at the direction of the court, I have heard their argument. I will reserve my decision. I seize myself of this matter and I will hear the main motions. I will release my decision on this motion at the start of the hearing on the main motions once I have had an opportunity to review all the materials for the main motions.

[21] Counsel should consult with a view of selecting a convenient date so that the main motions are heard no later than the end of April, 2012. The main motions have been outstanding for far too long; they must be argued in the next few months. If counsel cannot agree upon a date by February 10, 2012, they shall book a 9:30 appointment before me for the following week. Costs of today’s motion will be reserved to the hearing of the main motions.

[32] EOK relies on the decision in Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316 at para. 48:

[48] On the other hand, this court has recently endorsed the practice of resolving issues about the admissibility of affidavit evidence before a motions judge prior to the hearing before the Divisional Court panel. In Sierra Club, the Court stated, at paras. 7 to 8,

[w]e are of the view that this motion should have been brought prior to the hearing by the panel, in order to clarify the contents of the record prior to factums being filed. Proceeding in such a manner would have enabled the parties to define the issues for the hearing based upon properly admissible evidence. I note that this was the procedure followed in the decision of Hanna v. Ontario (Attorney General), 2010 ONSC 4058, 2010 ONSC 4058 (Div. Ct.). If the motion judge is unsure about the relevance of certain material, those issues may be left to be determined by the panel hearing the judicial review.

To fail to define the appropriate record for the Court before the hearing encourages the proliferation of collateral issues, as occurred in this application. Filing material by one party inevitably precipitates a response from the opposite party. The consequence of failing to define the record is a proceeding before this court that becomes unnecessarily complicated, expensive and lengthy. For the parties and for the court, the ground is continually shifting, and the core issues may be eclipsed by the procedural issues.

[33] I am satisfied that the issue of striking paragraphs ought to be left to the Divisional Court. The Divisional Court will have the benefit of a complete evidentiary record within which to determine and assess whether the impugned paragraphs ought to be struck from the affidavits. I agree with the analysis conducted by Justice D. M. Brown in 1196303 Ontario Inc.

April 29, 2016 attendance to deal with the issue of Mootness

[34] This matter appeared before me on April 29, 2016 for further submissions as a result of the Provincial Government’s policy changes regarding the IBI funding eligibility.

[35] On April 29, 2016 I heard submissions on this issue from counsel for EOK. Mr. Mutoigo, on behalf of the Applicant, did not make submissions on that date. After hearing the submissions of Ms. Zacks he made a motion for me to recuse myself. The matter was adjourned in order to hear the motion for recusal. On May 27, 2016 I gave oral reasons and dismissed Mr. Mutoigo’s motion that I recuse myself from this entire proceeding. The matter was then adjourned to June 21, 2016 to give Mr. Mutoigo an opportunity to prepare responding material and make submissions on the issue of mootness. The matter was adjourned from June 21, 2016 to June 23, 2016 for submissions.

Position of EOK on the issue of Mootness: made on April 29, 2016

[36] EOK filed an Affidavit of Pauline Eaton, sworn April 11, 2016 that sets out the following:

1. I am the Vice President of Autism Services at ErinoakKids (“EOK”). As such, I have personal knowledge of the matters to which I hereinafter depose.

2. On March 30, 2016, the Ministry of Children and Youth Services (“MCYS”) announced significant changes to its Autism Intervention Program (“AIP”) which is delivered by Regional Program Providers such as EOK. MCYS is replacing the AIP with the new Integrated Autism Program which, among other things, changes the eligibility requirements for Intensive Behavioral Intervention (“IBI”) funded through MCYS.

3. More specifically, as of April 1, 2016, children age 5 years and older are not eligible to apply for funded IBI and accordingly Regional Service Providers will not assess them for IBI eligibility. IBI funded by MCYS will be limited to children deemed to be in the appropriate developmental window (between 2 and 4 years of age). Attached as Exhibit “A” to this affidavit is a document authored by MCYS titled “Key Messages for Autism Service Providers” which describes MCYS’ policy change regarding IBI eligibility for children 5 years and older. Attached as Exhibit “B” to this affidavit is an MCYS News Release that refers to these changes.

4. Instead of IBI therapy, children 5 years and older will receive enhanced Applied Behavioural Analysis (“ABA”) services, which are more flexible and tailored to individual children’s needs.

5. Children up to eighteen years of age can register for ABA services on an MCYS waiting-list as long as the child has a diagnosis of Autism Spectrum Disorder. Other than having this diagnosis, there is no eligibility requirement for receiving government-funded ABA services from MCYS. EOK only provides ABA services to children up to age 9

[37] In the Confidential Report attached at Exhibit A to her Affidavit, the key messages outlined include the following:

Transitioning to the New Autism Program Over Two Years

• During the two year transition to the new program, Intensive Behavioural Intervention (IBI) will be focused so that children receive support in the appropriate developmental window (between two to four years of age), based on evidence.

• As of April 1, 2016, children age five years and older will no longer be able to apply for IBI, but will be eligible for ABA services.

• As of May 1, 2016, families of children five years and older who have been deemed eligible for and are waiting for IBI are no longer in the appropriate developmental window, and will be removed from the waitlist. These families will receive one-time funding of $8,000 to purchase community services or supports that meet their children’s specific needs during the transition. Their name will be placed or remain on the ABA

waitlist. Once the $8,000 is expended (but not before), these

children can then access government funded ABA services.

• Children who have been deemed eligible and are on the IBI waitlist and turn five during the two year transition period will also be removed from the waitlist after their fifth birthday. Their families will receive one-time funding of $8,000 to get community services or supports that meet their specific needs during the transition. Their name will be placed or remain on the ABA waitlist. Once the $8,000 is expended (but not before), these children can then access government funded ABA services.

• Children five years and older who are currently receiving IBI will continue with their current service plans until their next regular clinical progress assessment. At the next assessment, we will work with parents to develop an individualized transition plan to prepare your child to gradually transition to Applied Behaviour Analysis (ABA)-based services when a spot is available. We will work closely with families to support these children and ensure a smooth transition to ABA.

[38] In essence, EOK submits that even if the Applicant is successful at the Divisional Court hearing, the Divisional Court could not order that the Applicant would be entitled to IBI funding as he is not within the age requirements. Sebastian’s date of birth is September 2, 1999. He is now 15 years old.

Submissions of the Applicant made on June 23, 2016

[39] In support of his position, the Applicant filed an Affidavit of Sen Ozunal, the Applicant’s Litigation Guardian, sworn June 9, 2016. At paragraphs 3, 4, 5, 6 & 7 she states the following:

3. I am informed by my lawyer, James Mutoigo, and I believe it to be true, that autism funding for regional service providers, including the Respondent, is governed by legislation, and Autism Intervention Program Guidelines which ensure that the service providers comply with legislative requirements. Pauline Eaton’s affidavit does not allege that there have been any legislative changes.

4. I am also informed by my lawyer, James Mutoigo, and I believe it to be true, that that he has not seen any legislative changes to the funding of autism, and certainly no changes retroactive to 2012, when the Respondent denied the Applicant’s application.

5. In reply to paragraphs 3, 4 and 5 of Pauline Eaton’s affidavit they refer to a draft memorandum. She does not state what conclusions the Court can draw from a draft memorandum.

6. Furthermore, Pauline Eaton’s affidavit refers to children referred to Regional Service Providers after April 1, 2016. The Applicant applied for funding in 2011- 12.

7. This application seeks more remedies than just funding for autism. It seeks remedies for errors of law which are apparent on the record.

Reply Submissions by ErinoakKids on June 23, 2016

[40] Ms. Zacks reiterated her position as initially advanced on April 29, 2016. In addition, she submits that the Ministry is entitled to make policy changes and legislative changes are not required to do so.

[41] Ms. Zacks also argues that the Applicant does come within the policy changes. The Confidential Draft Report states:

As of May 1, 2016 families of children five years and older who have been deemed eligible for and are waiting for IBI are no longer in the appropriate developmental window and will be removed from the waitlist.

[42] On that basis even if the Applicant is successful at the hearing and he should have been deemed eligible, he would be removed from the list.

[43] Mr. Mutoigo responds to that submission by arguing that the policy change is not retrospective and only applies to those individuals applying for the funding after April 1, 2016.

CONCLUSION

[44] The issue for me to determine at the outset is whether I should decide the issue of mootness or should the Divisional Court decide the issue at the time the Application for Judicial Review is heard.

[45] I am satisfied that the same approach applies with respect to this issue as it did with respect to the striking of portions of the Affidavits.

[46] This motion should be made at the time the primary Application for Judicial Review is made before the Divisional Court.

Mootness

[47] In Chuang v. Royal College of Dental Surgeons of Ontario, [2007] O.J. No. 1677 (Ont. Div. Ct.), the Divisional Court dismissed an application for judicial review of a regulator’s decision to suspend temporarily a dentist’s licence to practice when the dentist’s licence had been permanently revoked in another disciplinary proceeding that had been compelled. The Divisional Court found that any decision it made would have no impact on the applicant’s right to practice dentistry and it dismissed the application as moot.

[48] However, the court has jurisdiction to hear a moot proceeding in the interests of justice.

[49] It is my view that the issue of mootness is one that should be dealt with by the Divisional Court. At that time it will be up to the Divisional Court to decide not only the issue of mootness but even if they determine that the issue is moot, whether it is in the interests of justice to express an opinion as to the legal issues involved.

[50] In Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, Gillese JA sets out the following at paras. 32 to 40:

[32] Having concluded that the appeal is moot, the second stage of analysis requires a determination as to whether, nonetheless, the court should decide the appeal on its merits. At this stage of the analysis, the onus rests on the appellant to demonstrate why the court should depart from its usual practice of refusing to hear moot appeals: Tamil Co-operative at para. 17.

[33] After stating that the court’s discretion is not to be fettered by the rigid application of pre-determined criteria, Sopinka J. in Borowski identified three factors for the courts to consider when determining whether to exercise discretion to hear a moot case:

(1) the presence of an adversarial context,

(2) the concern for judicial economy, and

(3) the need for the court to be sensitive to its role as the adjudicative branch in our political framework.

In exercising its discretion, the court is to consider the extent to which each of the three factors is present, recognizing that the ultimate determination is not a mechanical process.

[34] I am satisfied that the first factor – an appropriate adversarial context – exists in this case. The litigants have continued to argue their respective positions vigourously.

[35] The second factor relates to a concern for conserving scarce judicial resources. In deciding whether an expenditure of judicial resources is warranted, the court is to consider the importance of the issues raised and whether the issues are “evasive of review”: see Borowski at 360, New Brunswick at para. 45 and Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 , [2003] 3 S.C.R. 3 at para. 20.

[36] This appeal raises two issues. The first is whether the Divisional Court erred in applying a standard of review of correctness to the Board Decision. The second is whether the Divisional Court erred in holding that the Board’s interpretation of s. 128.1(3) of the LRA was incorrect (the “Procedural Issue”).

[37] There is no question but that both issues are important. However, the importance of the legal issues is not determinative of the matter. As Doherty J. A. explains in Tamil Co-operative at para. 24:

The importance of a legal issue raised in a proceeding is a relevant consideration in determining whether a court should hear a moot appeal. It is not, however, determinative. There are an almost infinite number of important legal issues lurking in the myriad of rules and regulations governing the citizenry upon which those interested in the issue would appreciate the opinion of an appellate court. If the importance of a legal issue is enough to overcome concerns associated with hearing moot appeals, the doctrine has little value. It means no more than that the court should not waste its time and resources deciding unimportant legal issues in cases where there is no longer a live dispute between the parties. This would seem self-evident.

[38] Moreover, the issues are not of public importance in the way in which that phrase has been understood in this area. This factor requires a consideration of the public importance in resolving the issues raised on appeal, a consideration related to the social cost of continued uncertainty in the law. As discussed in Tamil Co-operative at para. 26, the cases which meet this criterion have generally addressed questions of broad social and constitutional importance. While the matters in issue in this appeal are important, they do not raise questions of that sort.

[39] Further, neither issue raised on appeal is “evasive of review”. Generally, a matter is evasive of review if it is unlikely that the court will encounter it again or if it tends to be moot by the time it reaches the reviewing court. One example of this type of matter is that given in New Brunswick at para. 47: an interlocutory injunction prohibiting certain strike action. The certification provisions in question are relatively new, having only come into effect on June 13, 2005. It stands to reason that the Board will make many decisions that involve those provisions and that the procedures the Board follows in arriving at those decisions will be scrutinized through the judicial review process; hence, the Procedural Issue will be addressed. There is no question but that the issue of the standard of review to be applied to Board decisions in respect of those provisions will be revisited in those judicial review proceedings. Thus, I do not see the issues as evasive of review.

[40] The third factor to be considered in relation to mootness is the need for the court to be sensitive to its role as the adjudicative branch in our political framework. A court may decline to hear a moot case where it would require “departing from its traditional role as an adjudicator [or] intruding upon the legislative or executive sphere: Doucet-Boudreau at para. 22. This concern does not arise in the present case.

[51] I am satisfied that, guided by these legal principles and without commenting in any way about the issue of mootness, the issue ought to be left to be determined by the Divisional Court.

Re: Costs of the Recusal Motion

[52] I agree with the position of Ms. Zacks on behalf of EOK that the recusal motion was unnecessary and created a further delay in moving this matter forward. Ms. Zacks submits that Mr. Mutoigo could have and should have been ready to make submissions on the issue of mootness on April 29, 2016 rather than proceed with an unnecessary motion for recusal. On that basis, Ms. Zacks seeks costs of the motion in the all-inclusive sum of $1,548.10.

[53] Mr. Mutoigo argues that had Ms. Zacks advised him that she was not trying to mislead the court when she argued that there had been legislative change, he may not have proceeded with the recusal motion.

[54] In my oral reasons, I determined that Ms. Zacks was not misleading the court. Further, Mr. Mutoigo’s motion was also grounded on the basis that I had an out of court communication with Ms. Zacks in scheduling the April 29, 2016 hearing for further submissions. Mr. Mutoigo’s recusal motion was dismissed.

[55] I agree with the position of Ms. Zacks. The recusal motion was unnecessary and had no chance of success in the circumstances put forward by Mr. Mutoigo.

[56] I am satisfied that the amount of costs requested by Ms. Zacks is reasonable. An order shall issue that the Applicant pay to the Respondent costs fixed in the all-inclusive sum of $1,548.10 within 30 days.

SUMMARY OF ORDERS

1. That Ms. Sen Ozunal shall attend for cross-examinations within the next 30 days on a date convenient to counsel and Ms. Sen Ozunal

2. That the issues relating to striking portions of the Affidavits are reserved to be dealt with by the Divisional Court

3. That the issue relating to the mootness of the Application for Judicial Review is reserved to the Divisional Court

4. That the Applicant shall pay to the Respondent costs of the recusal motion fixed in the all-inclusive sum of $1,548.10 within 30 days

5. The parties shall file written submissions on costs with respect to paragraphs 1-3 of the summary of orders within 30 days.

Fragomeni, J.

DATE: June 28, 2016

CITATION: Nassab v. ErinoakKids, 2016 ONSC 4265

COURT FILE NO.: DC-13-137-JR

DATE: 2016 06 28

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Sebastian Nassab by his Litigation Guardian Sen Ozunal v. ErinoakKids

BEFORE: Fragomeni, J.

COUNSEL: Cara Zacks, for ErinoakKids

James Mutoigo, for Sebastian Nassab by his Litigation Guardian Sen Ozunal

ENDORSEMENT

Fragomeni, J.

DATE: June 28, 2016