Court File and Parties

CITATION: Berg v. Canadian Hockey League, 2017 ONSC 7066

DIVISIONAL COURT FILE NO.: 284/17

DATE: 2017-11-27

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Samuel Berg and Daniel Pachis, Plaintiffs

AND:

Canadian Hockey League, Ontario Major Junior Hockey League, Ontario Hockey League, Western Hockey League, Quebec Major Junior Hockey League Inc. et al, Defendants

BEFORE: Kiteley J.

COUNSEL: Theodore P. Charney, counsel for the Plaintiffs

Lisa Talbot, Sarah Whitmore and Irfan Kara, counsel for the Defendants

ADDENDUM TO ENDORSEMENT DATED NOVEMBER 16, 2017

[1] In an endorsement released November 16, 2017 (ONSC 6719), I made an order granting an extension of time to the plaintiffs to seek leave to appeal the order not to certify the redundant causes of action and I directed the plaintiffs to serve and file the necessary record and factum and book of authorities no later than November 30, 2017. This endorsement addresses the nature of the "necessary record" for purposes of the motion for leave to appeal.

[2] As indicated by Perell J. in the decision from which leave is sought (2017 ONSC 2608), the record before him was extensive and included many volumes of documents. The record on the motion for an extension of time was, appropriately, more modest.

[3] As a result of the amendment to rule 62.02 effective July 1, 2017, motions are heard in writing by a panel of three judges and for that reason, counsel on the motion for leave to appeal must file three copies of whatever is relied upon. It is therefore important that counsel collaborate and be more circumspect about what is "necessary" within the meaning of rule 37.10(2)(e) for counsel to provide to the panel hearing the motion for leave.

[4] In 2265535 Ontario Inc. v. Vijayant Sood (2017 ONSC 4738) the Divisional Court pointed out at paragraph 7 that motions for leave to appeal are made lengthier, or more complicated, by the desire of the parties to argue the appeal itself, rather than the issue of whether leave should be granted. That decision was in the context of what costs ought to be within normal expectations but it relevant as well to the content of the record.

[5] In general, the court expects counsel to collaborate and to agree on what is necessary. In this case, the issue on the motion for leave to appeal is the decision not to certify the "redundant causes of action". Because of the nature of the issue and the comprehensive reasons for decision by the motion judge, counsel should determine whether the "necessary" record for this motion for leave to appeal should consist of the following: the current version of the statement of claim, the reasons for decision and order of Perell J., the reasons for decision of Hall J. (2017 ABQB 382) referred to in the endorsement released November 16, and a copy of this endorsement.

ORDER TO GO AS FOLLOWS:

[6] Counsel for the parties shall collaborate and agree on the contents of the record which is necessary for purposes of the motion for leave to appeal referred to at paragraph 38 of the endorsement released November 16, 2017. To afford counsel an opportunity to comply, the deadline for the plaintiffs to serve and file the necessary record and factum and book of authorities is extended to no later than December 5, 2017.

Kiteley J.

Date: November 27, 2017