ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HAZELTON LANES and STEPHEN CHAN
Plaintiffs
– and –
1707590 ONTARIO LIMITED, JOHN FARACI, ADRIANA VERRELLI, SUSETE ANTUNES, ROSE SPERANDEO, 1203279 ONTARIO LIMITED, and ISIS SOCIETE CO. LTD.
Defendants
William A. Chalmers, for the Plaintiffs
Jonathan L. Rosenstein, for the Defendants
HEARD: May 27, 2015
G. DOW j.
reasons FOR DECISION
[1]
The Motion
The plaintiffs, Hazelton Lanes Inc. and Stephen Chan’s motion is for an order requiring the portions of the transcript from the first trial that has yet to be transcribed be ordered and paid for jointly by the parties (or in this case the above named plaintiffs and the defendants 1707590 Ontario Limited and John Faraci). Further, the plaintiffs seek an order that the transcripts be used at the new trial (which was ordered by the Court of Appeal on the basis of a reasonable apprehension of bias on the part of the trial judge against the defendants) subject to a party wishing to tender (additional) evidence from a person that gave evidence at the first trial satisfying the trial judge that such person is “likely to give evidence that was not given by that person at the first trial”. An exception to this would be the completion of the cross-examination of the defendant, Faraci and re-examination of him, if any, as well as re-examination of the plaintiff, Chan.
[2]
Positions of the Parties
The plaintiff’s position is this would promote a proportionate response to the situation at hand in accordance with the direction given by Justice Karakatsanis in Hryniak v. Mauldin, 2014 SCC 7.
3The defendants oppose the motion on the basis the plaintiffs have failed to establish the evidentiary basis for such an order. Further, the proposed order reverses the onus on the party seeking to utilize viva voce evidence particularly given portions of the transcript (particularly the cross-examination of the defendant Faraci which was used before the Court of Appeal was sufficient for it to conclude a new trial was required) would very likely be inadmissible at the new trial. The defendants also submitted the least expensive (and proportionate) manner to proceed may be with viva voce testimony, acknowledging the existence of the first trial transcript, where (presumably much smaller) portions may be utilized to cross-examine the witnesses where the viva voce testimony contradicts the prior transcribed evidence.
[4]
Analysis
The parties refer to the decision and appeal reasons in Sawridge Band v. Canada, 2001 FCA 338, [2000] F.C.J. No. 2111, 2001 F.C.A. 338. That decision dealt with Justice Hugessen, as a case management judge, attempting to deal with the use of transcripts of evidence from a first trial in a subsequent trial where the finding of a reasonable apprehension of bias concerning the first trial judge was on the basis of comments made with respect to Aboriginal rights as opposed to his general conduct of the trial. Regrettably, this does not appear to be the situation in this matter. The appeal reasons in Sawbridge are generally cited for the need to give case management judges latitude to manage cases. However, the appeal reasons also confirm that evidence taken at a trial, under oath, in open court and subject to cross-examination and transcription is “not read out of existence” (at paragraph 6). It is open to either party, in appropriate circumstances, to use such evidence or object to the use of such evidence and this would be determined by the trial judge.
5Having reviewed the motion material including the Court of Appeal reasons and reflecting upon the submissions of counsel, it is the Court’s view the relevant factors are:
the issues to be determined are heavily based on findings of credibility and in which viva voce evidence is to be preferred because the demeanour and responsiveness of the witness can be evaluated;
without having obtained and reviewed the trial transcript, it is premature to determine whether the proportionate way to proceed is by tendering portions of the transcripts or having evidence given viva voce;
it should be left to the trial judge to determine the manner in which evidence is received and any order in advance of the trial about how the evidence in the trial is to be tendered should be approached with great caution. This is especially the case where facts are in dispute and findings of credibility required;
while the need to ensure access to justice is in a timely and affordable manner and to accomplish this may require proportional procedures, the direction from Justice Karakatsanis also references proportionality needing to be tailored to the particular case (paragraphs 1 and 2 of Hryniak);
the transcript may afford either party a way to shorten or simplify the issues and accomplish what Justice Karakatsanis stated, “A judge must have an appreciation of the evidence necessary to make dispositive findings.” (paragraph 56).
[6]
Disposition
As a result, the Court concludes the transcripts are to be jointly ordered by the plaintiffs and defendants, 1707590 Ontario Limited and John Faraci with the cost of same borne equally pending further order by the Court. It is the Court’s understanding that the new process for obtaining trial transcripts on a regular basis (as opposed to expedited) should result in completion within 30 to 60 days which is, in the Court’s view, adequate. If the parties obtain contrary information, I may be spoken to. The balance of the plaintiff’s motion is dismissed, without prejudice to it being renewed on new and additional material.
7The parties are to contact Justice Himel to schedule a case conference and set a further timetable in this matter.
[8]
Costs
In the circumstances, the costs of this motion are reserved to the judge who presides over the final disposition of this matter.
Mr. Justice G. Dow
Released: June 16, 2015
CITATION: Hazelton Lanes v. 1707590 Ontario Limited, 2015 ONSC 3429
COURT FILE NO.: CV-11-437576
DATE: 20150616
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HAZLETON LANES and STEPHEN CHAN
Plaintiffs
– and –
1707590 ONTARIO LIMITED, JOHN FARACI, ADRIANA VERRELLI, SUSETE ANTUNES, ROSE SPERANDEO, 1203279 ONTARIO LIMITED, and ISIS SOCIETE CO. LTD.
Defendants
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: June 16, 2015