Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20210618 DOCKET: M52550 (C69417)
Brown J.A. (Motions Judge)
BETWEEN
Glenn Johnson, Michael Smith, and Timothy Hayne Plaintiffs (Respondents)
and
Her Majesty the Queen in Right of Ontario Defendant (Respondent/Responding party)
Proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6
Counsel: Nancy S. Barkhordari, Nital S. Gosai, and Mirilyn R. Sharp, for the moving party/appellant, Donald Parker, class member Sarah Pottle and Rita V. Bambers, for the responding party, Her Majesty the Queen in Right of Ontario
Heard: June 17, 2021 by video conference
Endorsement
[1] The appellant, Donald Parker, a class member in a class proceeding defended by the respondent, Her Majesty the Queen in Right of Ontario (“Ontario”), appeals an order of Grace J. dated April 16, 2021 that denied him an extension of time to opt out of the class proceeding. He moves for two orders.
[2] First, he seeks an extension of time to perfect his appeal until June 30, 2021. Ontario does not oppose his request. Accordingly, an order shall go extending the time for Mr. Parker to perfect his appeal to June 30, 2021.
[3] Second, Mr. Parker seeks an order that he be permitted to include in his appeal book and compendium (“ABC”) a short affidavit from one of his counsel who appeared at the hearing before Grace J. The request is an unusual one, so a bit of background is required.
[4] The motion hearing before Grace J. was not recorded, in accordance with the general practice of the Superior Court of Justice. In the course of preparing the appeal materials, appellant’s counsel sought to obtain a recording of the motion hearing to prepare a transcript and were advised that none existed.
[5] As a result, the appellant wishes to include in his ABC an affidavit from Nital S. Gosai (the “Affidavit”), one of his counsel who was present at the hearing. The Affidavit sets out her recollection of an exchange between the motion judge and her co-counsel during the motion hearing. The material part of the proposed Affidavit reads as follows:
This Affidavit was prepared based on my independent recollection of what transpired at the hearing on April 15, 2021 and is limited to the comments made at the outset of the hearing that are relevant to Mr. Parker’s Appeal.
Within less than four minutes of the commencement of the hearing, Justice Grace interrupted the submissions of Ms. Barkhordari to ask various questions concerning the evidence of when Mr. Parker discovered his cause of action. Before Ms. Barkhordari had an opportunity to respond to Justice Grace’s questions, His Honour specifically cautioned Ms. Barkhordari to “be careful how you answer that question on the record” as her answer could according to Justice Grace, detrimentally affect the limitation argument in Mr. Parker’s individual action.
Following this stern warning from Justice Grace, Ms. Barkhordari asked Mirilyn Sharp, a class action lawyer who had been assisting Ms. Barkhordari with the arguments for the motion, to take over the submissions to be made on behalf of Mr. Parker, which she did.
[6] Ontario does not dispute the accuracy of these statements. However, Ontario submits that the Affidavit should not find its way into the appellant’s ABC for several reasons: (i) no ground of appeal asserts procedural unfairness, therefore there is no need to understand how the hearing was conducted; (ii) submissions on a motion do not fall within the categories of documents that r. 61.10(1) of the Rules of Civil Procedure requires in an ABC; and (iii) counsel’s recollection of a colloquy between judge and counsel is not relevant to any issue on this appeal.
[7] The motion judge gave detailed reasons for his decision refusing Mr. Parker’s request for an extension of time. Those reasons no doubt will be the focus of the panel’s attention. Absent a ground of appeal asserting procedural unfairness, what transpired during a hearing between the court and counsel usually plays little role on the determination of an appeal. As this court observed in R. v. Smith (2001), 154 O.A.C. 51 (C.A.), at para 45, leave to appeal refused, [2002] S.C.C.A. No. 156:
[I]t is generally neither appropriate nor possible to draw inferences concerning a trial judge's reasons for a ruling based on colloquy with counsel. Trial judges routinely probe submissions to test the viability of various avenues of decision. Particularly where comprehensive reasons are given there is no basis for going behind a trial judge's reasons.
[8] In their helpful written submissions, counsel advanced detailed arguments about the relevance, or lack of relevance, of the in-court colloquy between the court and counsel. I see no need to express a view about the relevance of the contents of the Affidavit as I think r. 61.10(1)(i) of the Rules of Civil Procedure permits what the appellant seeks to do. An affidavit of counsel’s recollection of what transpired at a motion hearing certainly is not an “excerpt[] from a transcript of evidence” (r. 61.10(1)(g)) or an “exhibit” (r. 61.10(1)(h)), but it strikes me as arguably falling within the category of “any other documents relevant to the hearing of the appeal that are referred to in the appellant’s factum”, as identified in r. 61.10(1)(i).
[9] It is not the practice of this court to consider, in advance of the hearing of an appeal, whether any specific document included in an ABC is relevant or not. A panel ultimately forms its own view about the relevance or utility of any such document, such as the Affidavit the appellant proposes to include. If a party includes irrelevant documents in an ABC, it is open to the panel to sanction that practice by an award of costs against the offending party.
[10] For these reasons, I conclude that r. 61.10(1)(i) of the Rules of Civil Procedure permits the appellant to include the Affidavit in his ABC, if he thinks fit to do.
[11] The appellant seeks his costs of this motion on a substantial indemnity basis in the amount of $7,000. Ontario submits there should be no costs.
[12] I would observe that this motion is characteristic of far too many civil motions brought in this court. Which is to say, it is characteristic of the type of procedural motion – the contents of an ABC – that counsel, acting reasonably, should be able to settle without consuming judicial time.
[13] In the circumstances, I fix the costs of the motion at $1,500, inclusive of disbursements and applicable taxes. I leave the determination of which party is the payor and which is the payee to the panel hearing the appeal.
“David Brown J.A.”