Court File and Parties

Court File No.: CV-10-395662 Date: 2022-06-01 Superior Court of Justice - Ontario

Re: Helen Frances, Plaintiff/Respondent – AND – TTC Insurance Company, Toronto Transit Commission, Paul Manherz, Peter Ashbourne, Julie Stafford, John Doe, Faruk Hatia, and The Toronto Police Services Board, Defendants/Appellants

Before: Justice E.M. Morgan

Counsel: Tamara Broder, for the Appellants Adam Romain, for the Respondent

Heard: May 20, 2022

Adjournment of Appeal

[1] This is an appeal from the ruling of Associate Judge Wiebe on undertakings and refusals. Counsel have advised me that the matter is long and complex, and certainly more complicated than the simple description of "undertakings and refusals" might suggest. After a protracted and difficult process of scheduling, the Appellant now seeks to adjourn its own appeal due to the unavailability of lead counsel.

[2] An appeal book and factums have been served and filed. The Appellant apparently also intends to file a reply factum once the trial in which its lead counsel is currently engaged comes to an end. Counsel for the Appellant also seeks to file transcripts of the multi-day hearing before the associate judge below. Those transcripts are still on order, and so Respondent's counsel does not have copies of them.

[3] Respondent's counsel objects to the filing of transcripts. He explains that the matter has been long outstanding and that this may well delay it even further. He also points out that transcripts do not seem particularly necessary. The Appellant has already filed its factum, and there is no reference made there to any transcript or any discussion at the hearing before the associate judge.

[4] I do not see the need for transcripts of legal argument made at the hearing. Those arguments are not evidence; this was not a hearing where witnesses testified. The transcripts contain only the submissions of counsel and the questions or discussions engaged in by the judge.

[5] There may be times when an appeal will turn on what was said at a motion by counsel or the presiding judge, but given that the Appellant has not felt the need to mention this in its factum this does not appear to me to be one of those times. In a previous scheduling motion before Justice Glustein, Appellant's counsel did not indicate any desire to file transcripts of the hearing below. Counsel attending before me was not able to explain why the transcripts were needed.

[6] The other hurdle to be crossed in finalizing the appeal materials is that counsel have not been able to settle the order. Apparently, there is one aspect of that order on which they cannot agree. I am advised that they are attempting to arrange an appointment with the associate judge to resolve that issue, but have thus far not been given an appointment date.

[7] The order does need to be settled. Counsel indicate that they would only need 5 or 10 minutes to appear before the associate judge in order to do so. I would request that the associate judges' court office make arrangements for this brief appearance as soon as possible so that the appeal can proceed without further delay.

[8] The Appellant shall serve and file its reply factum by July 15, 2022. There is no need to file transcripts of the hearing below in this appeal. The appeal book can be supplemented with copies of Associate Judge Wiebe's order once the terms are settled, but that and the reply factum are the only additional material to be filed.

[9] The appeal will be heard on July 25, 2022 for 2 hours. That date is peremptory on the Appellant. I am not seized.

[10] Costs of this appearance are reserved to the judge hearing the appeal.

Date: June 1, 2022 Morgan J.