Court File and Parties

CITATION: Rogerson v. Havergal College, 2020 ONSC 4305

DIVISIONAL COURT FILE NO.: CVD-TO-17-20ML

DATE: 20200717

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ANDREW ROGERSON, personally, and ANDREW ROGERSON as LITIGATION GUARDIAN for GRACE ANDREA ROGERSON, Plaintiffs (Moving Parties)

AND:

Havergal College, catherine misson and KATIE WHITE, Defendants (Responding Parties)

BEFORE: Swinton, Lederer and Favreau JJ.

COUNSEL: Angela Salvatore, for the Plaintiffs (Moving Parties)

Linda Rothstein and Ren Bucholz, for the Defendants (Responding Parties)

Andrea Gonsalves, for the Responding Non-Party, Student Q

HEARD at Toronto: in writing

ENDORSEMENT

[1] The Plaintiffs have brought a consolidated motion for leave to appeal five orders of Kimmel J.: February 28, 2020; April 2, 2020 (recusal order); April 3, 2020 (Rogerson affidavit order); May 21, 2020 (costs order relating to the recusal motion); and May 21, 2020 (the costs order relating to the affidavit motion).

[2] The motions for leave to appeal are dismissed.

[3] Student Q participated in this motion for leave to appeal the April 3, 2020 order and the costs order that followed. It was reasonable for her to do so. Student Q shall have costs of the motion of $5,000.00 payable within 30 days by the Plaintiffs.

[4] Student Q requests relief in her factum relating to possible disclosure of confidential information in the Plaintiffs’ motion record, contrary to the order of Penny J. dated November 28, 2019. We note that the Plaintiffs are required to file a hard copy of the materials for this motion for leave in the Divisional Court once the Court has reopened. We wish to be clear that any material filed in the public court file must comply with the confidentiality orders of Penny J. and Kimmel J. Accordingly, we order that two weeks before filing the motion materials, the Plaintiffs shall deliver a copy of those materials to counsel for the Defendants and counsel for Student Q. If counsel have concerns about non-compliance with the confidentiality orders, they may seek a case conference with Favreau J., who has case managed the leave motion.

[5] The Defendants seek costs on a substantial indemnity basis in the amount of $39,899. While we are not prepared to award costs on that basis, the costs of this motion incurred by the respondents are significantly higher than one would expect for the usual motion for leave to appeal. That is due to the way in which the Plaintiffs have proceeded.

[6] In our view, the usual costs award of $5,000 for a leave motion is not appropriate, fair or reasonable in this case. In effect, there were three motions for leave to appeal brought within this one motion – the orders of February 28, April 2 and April 3 and the associated costs orders for the April 2 and 3 orders.

[7] The Plaintiffs filed voluminous materials – more than 4,500 pages in the motion record. There was no need for a record of this size on a motion for leave to appeal, but the Defendants were required to deal with it in order to respond adequately.

[8] As well, the Plaintiffs included two affidavits of counsel Angela Salvatore, without seeking leave of the Court to adduce fresh evidence in the materials. In one of these affidavits, she disclaims her consent to the February 28 order and also gives evidence about the conduct of Kimmel J. This evidence does not meet the test for fresh evidence. Furthermore, the second affidavit refers to events after the decisions in issue. The information in it is irrelevant. These affidavits were not appropriate, but, again, they required a review and submissions from the Defendants and resulted in increased costs.

[9] Given that there were, in effect, three motions for leave to appeal, it is fair to award $5,000 in costs for each. In addition, we would add a further $5,000 to reflect the added time required to deal with the lengthy materials and the Salvatore affidavits. Accordingly, we order the Plaintiffs to pay costs of the motion for leave to appeal to the Defendants in the amount of $20,000 all inclusive, within 30 days.

Swinton J.

Lederer J.

Favreau J.

Date: July 17, 2020