



COURT OF APPEAL FOR ONTARIO

CITATION: Johnson v. Ontario, 2021 ONCA 443

DATE: 20210618

DOCKET: M52550

(C69417)

Brown
    J.A. (Motions Judge)

BETWEEN

Glenn
    Johnson, Michael Smith, and Timothy Hayne

Plaintiffs

(Respondents)

and

Her Majesty
    the Queen in Right of Ontario

Defendant

(Respondent/Responding
    party)

Proceeding under the

Class Proceedings Act, 1992,
S.O. 1992. c. 6

Nancy S. Barkhordari, Nital S. Gosai, and
    Mirilyn R. Sharp, for the moving party/appellant, Donald Parker, class member

Sarah Pottle and Rita V. Bambers, for
    the responding party, Her Majesty the Queen in Right of Ontario

Heard: June 17, 2021 by video conference

ENDORSEMENT

[1]

The appellant, Donald Parker, a class member in
    a class proceeding defended by the respondent, Her Majesty the Queen in Right
    of Ontario (Ontario), appeals an order of Grace J. dated April 16, 2021 that
    denied him an extension of time to opt out of the class proceeding. He moves
    for two orders.

[2]

First, he seeks an extension of time to perfect
    his appeal until June 30, 2021. Ontario does not oppose his request.
    Accordingly, an order shall go extending the time for Mr. Parker to perfect his
    appeal to June 30, 2021.

[3]

Second, Mr. Parker seeks an order that he be
    permitted to include in his appeal book and compendium (ABC) a short
    affidavit from one of his counsel who appeared at the hearing before Grace J.
    The request is an unusual one, so a bit of background is required.

[4]

The motion hearing before Grace J. was not
    recorded, in accordance with the general practice of the Superior Court of
    Justice. In the course of preparing the appeal materials, appellants counsel
    sought to obtain a recording of the motion hearing to prepare a transcript and
    were advised that none existed.

[5]

As a result, the appellant wishes to include in
    his ABC an affidavit from Nital S. Gosai (the Affidavit), one of his
    counsel who was present at the hearing. The Affidavit sets out her recollection
    of an exchange between the motion judge and her co-counsel during the motion
    hearing. The material part of the proposed Affidavit reads as follows:

3. This Affidavit was prepared based on my
    independent recollection of what transpired at the hearing on April 15, 2021
    and is limited to the comments made at the outset of the hearing that are
    relevant to Mr. Parkers Appeal.

4. Within less than four minutes of the
    commencement of the hearing, Justice Grace interrupted the submissions of Ms.
    Barkhordari to ask various questions concerning the evidence of when Mr. Parker
    discovered his cause of action. Before Ms. Barkhordari had an opportunity to
    respond to Justice Graces questions, His Honour specifically cautioned Ms. Barkhordari
    to be careful how you answer that question on the record as her answer could
    according to Justice Grace, detrimentally affect the limitation argument in Mr.
    Parkers individual action.

5. Following this stern warning from Justice
    Grace, Ms. Barkhordari asked Mirilyn Sharp, a class action lawyer who had been
    assisting Ms. Barkhordari with the arguments for the motion, to take over the
    submissions to be made on behalf of Mr. Parker, which she did.

[6]

Ontario does not dispute the accuracy of these
    statements. However, Ontario submits that the Affidavit should not find its way
    into the appellants ABC for several reasons: (i) no ground of appeal asserts
    procedural unfairness, therefore there is no need to understand how the hearing
    was conducted; (ii) submissions on a motion do not fall within the
    categories of documents that r. 61.10(1) of the
Rules of Civil
    Procedure
requires in an ABC; and (iii) counsels recollection of a
    colloquy between judge and counsel is not relevant to any issue on this appeal.

[7]

The motion judge gave detailed reasons for his
    decision refusing Mr. Parkers request for an extension of time. Those
    reasons no doubt will be the focus of the panels attention. Absent a ground of
    appeal asserting procedural unfairness, what transpired during a hearing
    between the court and counsel usually plays little role on the determination of
    an appeal. As this court observed in
R. v. Smith
(2001)
, 154 O.A.C. 51, (C.A.), at para 45,
    leave to appeal refused, [2002] S.C.C.A. No. 156:

[I]t is generally neither appropriate nor
    possible to draw inferences concerning a trial judge's reasons for a ruling
    based on colloquy with counsel. Trial judges routinely probe submissions to
    test the viability of various avenues of decision. Particularly where
    comprehensive reasons are given there is no basis for going behind a trial
    judge's reasons.

[8]

In their helpful written submissions, counsel
    advanced detailed arguments about the relevance, or lack of relevance, of the
    in-court colloquy between the court and counsel. I see no need to express a
    view about the relevance of the contents of the Affidavit as I think r.
    61.10(1)(i) permits what the appellant seeks to do. An affidavit of counsels
    recollection of what transpired at a motion hearing certainly is not an
    excerpt[] from a transcript of evidence (r. 61.10(1)(g)) or an exhibit (r. 61.10(1)(h)),
    but it strikes me as arguably falling within the category of any other
    documents relevant to the hearing of the appeal that are referred to in the
    appellants factum, as identified in r. 61.10(1)(i).

[9]

It is not the practice of this court to
    consider, in advance of the hearing of an appeal, whether any specific document
    included in an ABC is relevant or not. A panel ultimately forms its own view
    about the relevance or utility of any such document, such as the Affidavit the
    appellant proposes to include. If a party includes irrelevant documents in an
    ABC, it is open to the panel to sanction that practice by an award of costs
    against the offending party.

[10]

For these reasons, I conclude that r.
    61.10(1)(i) permits the appellant to include the Affidavit in his ABC, if he
    thinks fit to do.

[11]

The appellant seeks his costs of this motion on
    a substantial indemnity basis in the amount of $7,000. Ontario submits there
    should be no costs.

[12]

I would observe that this motion is
    characteristic of far too many civil motions brought in this court. Which is to
    say, it is characteristic of the type of procedural motion  the contents of an
    ABC  that counsel, acting reasonably, should be able to settle without
    consuming judicial time.

[13]

In the circumstances, I fix the costs of the
    motion at $1,500, inclusive of disbursements and applicable taxes. I leave the
    determination of which party is the payor and which is the payee to the panel
    hearing the appeal.

David Brown J.A.


