Court File and Parties

CITATION: Doe v. Havergal College, 2020 ONSC 8207

TEMPORARY DIVISIONAL COURT FILE NO.: CVD-TO-6-20ML

DATE: 20200514

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MOTHER DOE, personally, and JANE DOE, AN INFANT by her LITIGATION GUARDIAN MOTHER DOE, Plaintiffs (Moving Parties)

AND:

HAVERGAL COLLEGE, SEONAID DAVIS, STUDENT 1 and STUDENT 2 Defendants (Responding Parties)

BEFORE: Swinton, Sachs and D.L. Corbett JJ.

COUNSEL: Andrew Rogerson, Angela Salvatore, and Peter Spiro, for the Plaintiffs (Moving Parties)

Linda Rothstein, Ren Bucholz and Charlotte Calon, for the Defendants Havergal College and Seonaid Davis (Responding Parties)

Shaun Laubman and Connia Chen, for the Defendants Student 1 and Student 2 (Responding Parties)

HEARD at Toronto: in writing

SUPPLEMENTARY ENDORSEMENT

[1] By way of a case management endorsement released May 1, 2020, Favreau J. established a schedule for delivery of materials for the plaintiffs’ motion for leave to appeal from decisions of Myers J. The plaintiffs had sought interim relief pending decision on the motion for leave to appeal, and considered that the issues they were raising to be urgent. Favreau J. directed that the motion for leave to appeal be expedited and placed before a panel of this court during the week of May 11, 2020.

[2] This panel dealt with the motion for leave to appeal as an urgent matter on the basis of the position taken by the plaintiffs and the directions made by Favreau J. The panel met and decided the motion for leave to appeal on May 11, 2020. The panel’s decision was not released to the parties until May 12, 2020 due to the time required to prepare the formal typed decision and to arrange for its release by court staff.

[3] Counsel for the plaintiffs wrote to the court by email on May 11, 2020, at 3:20 pm, after this court had decided the motion for leave to appeal, but before this court’s decision was released to the parties.

[4] Counsel’s email stated:

Upon review, we have discovered that the defendants / respondents have included in their motion record, copies of their facta used in the court below. Facta from the court below, in our respectful view, are not part of the record that should… be transmitted to an appellate court.

We have written to opposing counsel requesting that they deal with this matter by 8.45am today, but they have not responded. Would you be kind enough to advise us whether it is been determined that their facta should be removed, or whether, extraordinarily, the court would wish to see our factum from the court below?

[5] Anything that was before the court below may form part of the record that is placed before this court on a motion for leave to appeal. There was nothing wrong with responding parties including their factums below in their responding materials.

[6] Counsel’s email was not brought to the attention of the panel until after the panel’s decision had been released to the parties.

[7] If we had not already decided this motion for leave to appeal, we would have permitted the moving parties to file copies of the factums below as reply materials to the responding materials filed by the responding parties, if they wished to do so.

[8] However, we have decided the motion for leave to appeal, and we will not reconsider our decision in light of what may have been in the appellants’ factums below. Our decision did not turn on the factums filed by the responding parties and could not possibly be affected by anything in the appellants’ factums below.

[9] In saying that anything that was before the court below may be placed before us on a motion for leave to appeal, we wish to be clear that this court encourages parties to place before this court only the materials that are necessary for the motion for leave to appeal. Filing of factums below, while not “extraordinary” and certainly not improper, would usually be unnecessary on a motion for leave to appeal.

Swinton J.

Sachs J.

D.L. Corbett J.

Date: May 14, 2020