Court File and Parties

COURT FILE NO.: CV-22-96, CV-23-58 DATE: 2023-03-31

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rainbow Alliance Dryden and Caitlin Hartlen v. Brian Webster AND Felicia Crichton and John-Marcel Forget v. Brian Webster

HEARD: March 30, 2023

BEFORE: Nieckarz J.

COUNSEL: D. Judson, for the Plaintiffs Self-rep, for the Defendant

E N D O R S E M E N T

[1] This matter came before me today further to my Endorsement dated March 10, 2023. Mr. Judson appearing for the Plaintiffs (in both the Kenora and the Thunder Bay action) and Mr. Webster representing himself. This matter was heard by Zoom.

[2] Further to my Endorsement of March 10, 2023, Mr. Webster was to have brought his Rule 59.06 motion returnable today to set aside a costs order. Mr. Webster did not bring that motion in accordance with the timeline provided for in paragraph 6 of my Endorsement. Instead, he endeavoured to bring an application for a copy of a transcript from a case conference in a different proceeding ( Labine v. Webster and Demasi ). The Application was not accepted for filing by the Court as there was not proper service (re: requisite time for service), nor was it within the time for filing to be added to the motions list for today. Despite no matter being properly before the Court, I suggested the parties appear before me to address Mr. Webster’s desire to bring the Application and to ascertain whether he still intends to bring the Rule 59.06 motion.

[3] The transcript that Mr. Webster seeks is from a Case Conference that was held in the Labine v. Webster and Demasi matter. That conference was held before RSJ Warkentin on September 3rd, 2019. RSJ Warkentin has denied Mr. Webster’s request for the transcript. I have endeavoured to explain to Mr. Webster why his request for a transcript may have been refused. I have explained to Mr. Webster that proceedings such as Case Conferences differ from other types of court proceedings such as motions, trials and other public hearings such as bail hearings (I use this latter example because transcripts from a bail hearing appear to have been an issue in the conference before RSJ Warkentin and the hearing before Myers J). Conferences are recorded solely for the benefit of the presiding judge and transcripts are not generally made available to litigants unless the presiding judge decides otherwise. Case Conferences are often considered to be “off the record” conversations in which settlement positions may be explored and/or parties are encouraged to speak frankly about the direction of the case, without having concern for those discussions appearing in court documents at a later date. When all parties are represented by counsel, such proceedings are not even recorded due to their “off the record” or “without prejudice” nature. I note from RSJ Warkentin’s September 3rd, 2019, Endorsement, that this is precisely what happened at the September 3rd, 2019, conference. The Endorsement speaks to the procedural issues discussed, direction chosen, and that “we conducted brief settlement discussions”.

[4] Mr. Webster feels strongly that the transcript is relevant to the issue of whether an out-of-town judge should be appointed. He believes that precedent was set in the Labine matter. He advises that his recollection of the reason for the appointment of an out-of-town judge in that case is no different than the one before me, being that he is a public media persona. Short of at least being able to listen to the audio recording, he does not accept RSJ Warkentin or Mr. Judson’s recollection of the reason for an out-of-town judge in that case as being related solely to the fact that the Plaintiff was a prominent, local criminal lawyer who appears before judges of this court regularly. I was not present and cannot comment on the discussions that took place. I have offered my best guess, along with RSJ Warkentin’s recollection of the reason for the out-of-town judge. Mr. Webster acknowledges that his recollection may be wrong, but he either wishes to see the transcript or listen to the audio recording to confirm.

[5] Mr. Webster will need to take this issue up with RSJ Warkentin. She was the presiding judge over the conference and is the judge who has denied the request. It is not for me to override her decision. It will be up to RSJ Warkentin to decide whether she is able to release all of part of the transcript to Mr. Webster. Understanding the reason why Mr. Webster feels it is important will assist her in making a decision. That is partially why I have provided this detailed endorsement. Mr. Webster will need to bring his request directly to RSJ Warkentin. Mr. Judson has indicated that the Plaintiffs in this proceeding do not need to be respondents to the application for the transcript and I agree. Mr. Webster should, however, serve the other parties to the Labine action with notice of the application.

[6] Once the transcript issue has been dealt with, Mr. Webster will need to decide whether he wishes to bring a formal motion to have an out-of-town judge hear matters in this proceeding. I have provided my thoughts from a case management perspective in my previous endorsement and discussed the issue with RSJ Warkentin. Having said this, no formal motion has been brought and I have not had fulsome arguments on this issue. To date, we have simply been trying to manage these actions and the anti-slapp motions. If a motion is to be brought, it will need to be done as soon as possible so as not to jeopardize the June full-day motion date already set aside. If Mr. Webster is successful, a new date will have to be scheduled.

[7] With respect to Mr. Webster’s disagreement with my decision, reflected in my March 10th Endorsement, to require any anti-slapp motion in the Thunder Bay action to be heard together with the Kenora anti-slapp, I have carefully listened to, and considered what Mr. Webster has said both at our last appearance and today. The reasons for my decision are set out in my previous Endorsement, and I have endeavoured to explain them again to Mr. Webster orally. While I can appreciate that Mr. Webster’s preference may be to deal with one action at a time, as I have advised him, my decision stands subject to his right to appeal it. My previous decision is an interlocutory order. Mr. Webster’s attention is directed to rule 62 of the Rules of Civil Procedure governing appeals of interlocutory orders.

[8] Mr. Webster also seeks an extension of the timelines provided for in my March 10th Endorsement to deliver his materials on the anti-slapp motions and to bring his Rule 59 motion. Mr. Judson is agreeable to a brief extension of the timelines for delivery of the anti-slapp motion materials.

[9] It is ordered that:

1. If he intends to proceed with the request, Mr. Webster’s application for a copy of the transcript, or access to the audio recording of the September 3rd, 2019, Case Conference shall be brought before RSJ Warkentin on a date to be scheduled by Mr. Webster with the trial co-ordinator.
2. Mr. Webster shall serve his application on Mr. Labine (Mr. Demasi is now deceased).
3. Mr. Webster shall not name either the Kenora action plaintiffs (Rainbow Alliance Dryden and Caitlin Hartlen) or the Thunder Bay action plaintiffs (Felicia Crichton and John-Marcel Forget) as Respondents to that application.
4. The timelines provided for in paragraph 6 of my March 10th Endorsement shall be extended as follows: a. Mr. Webster shall serve on the Plaintiffs and file with the Court his anti-SLAPP Notice of Motion in the Crichton/Forget matter (if he chooses to bring it) no later than April 3rd, 2023, at 4:00 p.m.; b. Mr. Webster’s moving party record in the Kenora and Thunder Bay matters shall be served and filed no later than April 3rd, 2023, at 4:00 p.m. c. One motion record containing both Notices of Motion (Kenora and Thunder Bay anti-slapp motions) and one affidavit that addresses the necessary evidence for both matters may be served and filed. d. If Mr. Webster is bringing his Rule 59.06 motion, he shall make it returnable for Monday May 1st, 2023, at 11:00 a.m. (EDT, 10:00 a.m. CDT), to be heard by Zoom. e. Mr. Webster’s Rule 59.06 motion record shall be served on the Plaintiffs in the Thunder Bay action and filed with the Court no later than 4:00 p.m. (EDT) on April 11, 2023. f. The Plaintiff’s response to that motion shall be delivered no later than 4:00 p.m. (EDT) on April 25th, 2023. g. Any further reply by Mr. Webster shall be served and filed no later than 4:00 p.m. (EDT) on April 30th. h. For the Rule 59.06 motion, Mr. Webster shall confirm with Mr. Judson by email once his materials have been accepted by the Court for filing, as Mr. Judson has offered to upload those materials to Caselines on Mr. Webster’s behalf.
5. Costs of today’s appearance are reserved for argument and determination at a later date.
6. The balance of my Endorsement of March 10, 2023, that is not amended by this Endorsement, shall remain in full force and effect.

[10] The email address for the trial co-ordinator is ThunderBay.scj@ontario.ca; court filing for Kenora is Courts.Kenora@ontario.ca; court filing for Thunder Bay is CSD.THUNDERBAY.scj@ontario.ca.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

DATE: March 30, 2023