


COURT OF APPEAL FOR ONTARIO

CITATION: J.K. v. Ontario, 2017 ONCA 332

DATE: 20170426

DOCKET: C63171, M47411

MacFarland, van Rensburg and Huscroft JJ.A.

BETWEEN

J.K.

Plaintiff

(Appellant/Responding Party)

and

Her Majesty the Queen in Right of the Province of
    Ontario

Defendant

(Respondent/Moving Party)

Heather Burnett and Jonathan Sydor for the moving party

Kirk M. Baert and James Sayce for the responding party

Heard: February 17, 2017

On motion to quash an appeal from the order of Justice Paul M.
    Perell of the Superior Court of Justice, dated December 22, 2016, with reasons
    reported at 2016 ONSC 8040.

ENDORSEMENT

[1]

This is a motion to quash the within appeal on the basis that the order
    which is the subject of the appeal is interlocutory as opposed to final and any
    appeal from it lies to the Divisional Court with leave, pursuant to s. 19(1)(b)
    of the
Courts of Justice Act
, R.S.O. 1990, c. C.43.

[2]

J.K. is the representative plaintiff in a proposed class proceeding
    brought against Her Majesty the Queen in Right of the Province of Ontario (HMQ)
    on behalf of all persons who were/are detained and/or incarcerated at one of
    the [youth detention centres] from January 1, 2007 to the present and were placed
    in secure isolation while under the age of 18. He was at various times
    detained at three different youth detention centres.

[3]

As noted by the motion judge at para. 3 of his reasons:

For the purposes of the pending certification motion, J.K.
    delivered an affidavit in which he recounts some of his experiences, including
    a description of the youth detention centres and of his confinements in secure
    isolation, which is also described as solitary confinement.

[4]

The issue dividing the parties is set out in paras. 4 through 6 of the
    motion judges reasons as follows:

[4] The Crown wishes to cross-examine J.K., and it wishes to
    obtain production of a variety of what are described as Youth Records under
    the
Youth Criminal Justice Act
, S.C. 2002, c.1. J.K., however, refuses
    to produce the documents, and he submits that the Superior Court does not have
    jurisdiction to order him to produce the documents because of s. 118 of the
Youth
    Criminal Justice Act
, which prohibits access to Youth Records unless
    authorized under that
Act
.

[5] In response to J.K.s motion for certification, the Crown
    seeks an order: (1) declaring that the Youth Records are necessary for the fair
    determination of the certification motion; and (2) directing J.K. to consent to
    an application in the Youth Justice Court for access to all of his records
    maintained by the three facilities, his probation records and various other
    records maintained by the Ministry of Community and Youth Services (the MCYS).

[6] Authorizations are available from judges of the Youth
    Justice Court and J.K. submits that the Superior Court does not have
    jurisdiction to order him to consent to an application by the Crown to obtain
    the Youth Records. Further, J.K. submits that if this court has jurisdiction to
    order him to produce the requested Youth Records, the court ought not to
    exercise that jurisdiction because the Crown has not satisfied the onus on it
    to show that the Records are relevant to the certification motion and that, in
    any event, the request is too broad and beyond what might be produced for the
    certification motion.

[5]

The records that the Crown seeks production of are set out in para. 18
    of the motion judges reasons. There are ten different types of documents
    requested that the motion judge notes are a small subset of the set of
    documents that comprise youth records. Additionally, the Crown requested
    production of the Serious Occurrence Reports from J.K.s probation records, as
    well as the Secure Isolation Report Summaries and related correspondence from
    the MCYS offices and, finally, J.K.s criminal history file from the Canadian
    Police Information Centre (CPIC).

[6]

The Crown argued that the Youth Records were relevant to the
    certification motion with respect to:

(a) Whether
    J.K. was in secure isolation;

(b) If J.K.
    was in secure isolation, particulars of the institution and the time in
    isolation;

(c) Whether
    the placement was in conformity with the governing legislation;

(d) Whether
    J.K. is an appropriate representative plaintiff; and

(e) To test
    J.K.s credibility on the matters about which he deposed in his affidavit.

[7]

The motion judge was satisfied that the Crown had shown the relevance
    of its request for Youth Records. The only exception among the requested records
    was J.K.s CPIC record, which he concluded would offer little relevant
    information.

[8]

The motion judge was further satisfied that he was not precluded by the
Youth
    Criminal Justice Act
from directing a litigant before him to make an
    application to the Youth Justice Court. A conclusion on the propriety of that
    determination is not necessary for the disposition of this motion to quash.

[9]

The motion judge concluded, at para. 39:

If J.K. does not apply to the Youth Justice Court or if he does
    not apply in good faith making a sincere request for the requested Youth Records,
    which documents are needed for the purposes of his own proposed class action,
    then I will stay his proposed class action. If he applies in good faith and the
    Youth Justice Court judge dismisses his request, then once again I will stay
    his proposed class action.

[10]

The formal order provides:

THIS COURT ORDERS that this action shall be stayed unless the Plaintiff
    produces the following Youth Records: [thereafter follows a listing of the records
    ordered produced]

[11]

The order is an unusual one. In mandatory language it orders the action
    stayed unless a condition is met - that condition being that J.K. produce the
    Youth Records.

[12]

More usually, where a party brings a motion for the production of documents,
    an order issued in response will provide for the production of certain
    documents, failing which some penalty or other will be imposed on the
    defaulting party.

[13]

The Crown, in the motion that it brought in response to J.K.s
    certification motion, sought an order that would achieve two things:

(1)

Declare that the Youth
    Records were necessary for the fair determination of the certification motion;
    and

(2)

Direct J.K. to consent to an
    application in the Youth Justice Court for access to all of his records maintained
    by the three facilities where he had been incarcerated, his probation records
    and various other records maintained by MCYS.

[14]

In its materials, the Crown refers to the order as the production
    order and says in its factum that:

The Production Order requires the Appellant to produce to the
    defendant Crown certain records relating to his experiences with SI at the Facilities
    (J.K.s SI Records), failing which the case management judge shall stay the
    action.

[15]

It further states that it is a matter of settled law that production
    orders are interlocutory and thus that this court does not have jurisdiction to
    hear the appeal.

[16]

The responding party submits at para 18 of his factum that the Young
    Offender Records Order is final for four reasons:

(a)

The Young Offender Records
    Order is impossible to fulfill;

(b)

J.K. has lost substantive
    rights that could be determinative of the action;

(c)

Jurisdictional matters such
    as this are final; and

(d)

Non-party production orders
    are final.

[17]

Courts long have repeated the mantra that originated in
Hendrickson
    v. Kallio
, [1932] O.R. 675 (C.A.), at p. 678:

The interlocutory order from which there is no appeal is an
    order which does not determine the real matter in dispute between the
    partiesthe very subject matter of the litigation, but only some matter
    collateral.

[18]

Nevertheless, the question whether an order is final or interlocutory
    continues to vex courts. Had the order in question been differently worded and
    followed the more usual form for such orders resulting from a motion for production
    of documents, I think that there would be little doubt but that the order was
    interlocutory. If, for example, the order read that J.K. was to produce his
    Youth Records, failing which the action would be stayed, such order would be
    interlocutory. As Sharpe J.A. noted in
Inforica Inc. v. CGI Information
    Systems and Management Consultants Inc.,
2009 ONCA 642, 97 O.R. (3d) 161,
    at para. 26:

I recognize that failure to satisfy an order for security for
    costs may lead to a dismissal of the claim, but the sanction for non-compliance
    with an order cannot alter the nature of the order itself. Many procedural or
    interlocutory orders  for particulars, for production of documents, for the
    payment of costs ordered in interlocutory proceedings  may carry the ultimate
    sanction of dismissal of the non-complying partys claim. But if the claim is
    dismissed, the dismissal flows from the partys failure to comply with the
    interlocutory or procedural order, not from the order itself, and does not
    alter the interlocutory or procedural nature of the order that led to
    dismissal: see
Laurentian Plaza Corp. v. Martin
(1992), 7 O.R. (3d)
    111 (C.A.).

[19]

In my view, to suggest that the order in issue is anything more than a
    production order with a sanction in the event of non-compliance would be to put
    form over substance.

[20]

As was said by this court in
Fram Elgin Mills 90 Inc. v. Romandale
    Farms Limited
, 2016 ONCA 404, 131 O.R. (3d) 455, at para. 30:

The nature of the underlying motion is an important
    consideration in deciding whether an order is final or interlocutory.

[21]

The order was made in the context of a production motion brought within
    the motion for certification. What was sought was a declaration that the Youth
    Records were necessary for the fair determination of the certification motion
    and that the plaintiff be required to produce them. That was the substance of
    the motion; it was not a motion for a stay of proceedings. The stay was to be
    imposed only if the Youth Records were not produced.

[22]

This analysis would not change even if compliance with the order by J.K.
    were impossible, as J.K. alleges.
Laurentian Plaza Corp. v. Martin
(1992),
    7 O.R. (3d) 111 (C.A.), at p. 116, clearly holds that an order otherwise
    interlocutory will not be a final order merely because non-compliance with a
    part of the relevant order would determine a substantive right. The application
    of this rule even to an interlocutory order with which compliance allegedly is
    impossible is appropriate because, as the same passage of
Laurentian Plaza
    Corp.
explains, the purpose of the categorization of orders in this
    context is to provide an efficient method through which to divide labour
    between this court and the Divisional Court.

[23]

Therefore, the response to the four arguments raised by the responding
    party is as follows:

(a)

The impossibility concern,
    in the context of this motion, is irrelevant to the categorization of this
    order;

(b)

J.K. has not, by the terms
    of this order, lost any substantive rights that could be determinative of the
    action;

(c)

There is no jurisdictional
    issue engaged by the terms of the order at this stage;

(d)

J.K. is a party to the
    proceeding and he is the person ordered to produce the documents.

[24]

For these reasons, in my view, the order in question is interlocutory, and
    any appeal lies to the Divisional Court with leave. Accordingly, the appeal is
    quashed.

[25]

Costs to HMQ fixed in the sum of $5,192.50, inclusive of disbursements,
    plus HST where appropriate.

J. MacFarland J.A.

K. van Rensburg
    J.A.

Grant Huscroft
    J.A.


