Court File and Parties
COURT FILE NO.: CV-17-570771CP DATE: 2019/05/27 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JULLIAN JORDEA REDDOCK Plaintiff
- and - ATTORNEY GENERAL OF CANADA Defendant
Counsel: Kirk M. Baert, James Sayce, Michael Rosenberg, and Charlotte-Anne Malischewski for the Plaintiffs Eric Lafreniere, Susan Gans, Negar Hashemi, Lucan Gregory, Heather Thomson for the Defendant
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
Reasons for Decision
[1] In this certified class action under the *Class Proceedings Act, 1992*, there is a five-day summary judgment motion scheduled for July 22-26, 2019.
[2] Up until May 24, 2019, the motion was scheduled for seven days as there was also an accompanying motion to certify a negligence cause of action, but the Attorney General of Canada (“Canada”) no longer opposes the certification of this cause of action.
[3] Canada, however, now moves for an Order adjourning the summary judgment motion sine die pending: (a) the outcome of the appeal to the Ontario Court of Appeal in Brazeau v Attorney General (Canada), 2019 ONSC 1888; and (b) the application for leave to appeal to the Supreme Court of Canada in Canadian Civil Liberties Association v Canada, 2019 ONCA 243.
[4] Canada submits that there is a substantial overlap among the law and the facts of the immediate case and of the Brazeau case and the Canadian Civil Liberties Association case. Canada submits that granting the adjournment could: (a) prevent unnecessary and costly duplication of judicial and public resources; (b) prevent the development of inconsistencies in the law; and (c) allow the parties to significantly reduce and streamline the issues and submissions. Canada submits that granting an adjournment is consistent with s. 138 of the *Courts of Justice Act*, R.S.O. 1990, c.C.43 which provides that as far as possible, multiplicity of legal proceedings shall be avoided.
[5] Further, Canada submits that its substantive rights will be prejudiced if an adjournment is refused. Canada submits that the only prejudice to Mr. Reddock and the Class Members is delay and that prejudice will be outweighed by the benefit of having the guidance of the appellate courts in Brazeau and the Canadian Civil Liberties Association, which will streamline the legal and factual issues in dispute between the parties and not waste judicial resources.
[6] The premise of Canada’s argument is that it would be fairer, more efficient and in the interest of avoiding multiple proceedings about the same legal and factual issues to postpone an adjudication of the Reddock action to await the outcome of the appeals in Brazeau and the Canadian Civil Liberties Association. Underlying this premise are the ideas that multiple legal proceedings about the same legal and factual issues are inefficient and a waste of the court’s scarce resources and there is the embarrassing prospect of inconsistent results and, therefore, the summary judgment motion should be adjourned.
[7] For the reasons that follow, I refuse the adjournment request.
[8] I begin my explanation by acknowledging that it is true that there is a substantial overlap in the law and the facts amongst the three cases. All three cases involve the issue of Canada’s use of administrative segregation in its penal institutions across the country. All three cases arise out of a similar factual background and the evidentiary records in the three cases are similar with many of the same experts providing opinions.
[9] It, however, does not follow that because similar cases are before the court that one or more of them should be stayed or put on pause in order to learn from the outcome of other cases. And, it does not follow that because similar cases are before the court that there are efficiencies to be achieved or to use Canada’s words “streamlining” that will not waste judicial resources. Sometimes it may be efficient and fairer to stay the progress of one case to await the outcome of other cases, but other times, inefficiencies and unfairness may be the product of putting one case on hold to await the outcome of another case(s).
[10] In the immediate case, there is no unnecessary expenditure of legal resources in going forward with the summary judgment motion. The evidentiary record is complete and the case should be decided in accordance with the current state of the law. The parties in Reddock have known for a long time that there are other actions about administrative segregation and have or ought to have prepared for the circumstances that these cases might establish principles that affect the outcome of Reddock.
[11] The immediate case, which commenced in 2017, has been litigated for two years with the knowledge that there were other similar cases working their way through the courts across the country. Undoubtedly hundreds of thousands of legal expense has been spent preparing for the summary judgment in the immediate case with knowledge that the immediate case may be effected by the precedents established in those other cases. There was no agreement between the parties to use any of these cases as test cases. Thus, it is more than a bit late in the procedure to suggest that an adjournment of the summary judgment motion will achieve efficiencies.
[12] In any event, apart from the interrelationship among the three cases on the Charter issues associated with administrative segregation, there is discrete work to be done in the Reddock case that will not be informed by the eventual outcomes in Brazeau and the Canadian Civil Liberties Association. With the negligence claim now certified, it remains to be determined whether the case is appropriate for a summary judgment, and if appropriate, it remains to be determined whether or not Canada was negligent in its use of administrative segregation.
[13] A pause of the immediate case; i.e., an adjournment of the summary judgment motion, wastes two years of work and is more a rewind, a pause, and then a restart perhaps several years from now. There is no streamlining; rather, there is waste and complexification. Rather than preventing unnecessary and costly duplication of judicial and public resources, the adjournment will substantially add to the cost of these proceedings. In any event, there is no saving of judicial resources. Unless the matter were to settle, there eventually will be a five-day summary judgment motion.
[14] Thus, while at first blush, Canada’s argument for an adjournment may appear attractive, upon reflection and analysis it turns out that that it is a much better argument for not adjourning the combined motions than it is for adjourning the motions. In the circumstances of the Reddock case, it is far preferable to complete the summary judgment motion. Then, the unsuccessful party - and it remains to be determined whom the loser will be - can apply to have the appeal in the Reddock case heard along with the appeal in Brazeau. That might achieve efficiencies.
[15] Upon analysis, if the concern is wasting judicial resources, there is far less waste if Reddock is decided and then its appeal catches up with the other cases. In other words, there is no streamlining or efficiencies to be achieved by suspending Reddock pending the outcome of the appeals in Brazeau and the Canadian Civil Liberties Association. In contrast, there is fairness and efficiencies for both parties in proceeding with the summary judgment motion.
[16] I do not agree or see how Canada substantive rights will be prejudiced if an adjournment is refused. Trial courts can only decide cases based on the existing state of the law and not in anticipation of what appellate courts may do to change the law. I also disagree that the only prejudice to Mr. Reddock and the Class Members is delay. It is trite to say that justice delayed is justice denied and the waste and in the immediate case the delay of an adjournment sine die after two years of preparation is a substantial prejudice.
[17] I, therefore, refuse the adjournment request.