2017 ONSC 2601, 2017 ONSC 2601

CITATION : S.C. v. N.S., 2017 ONSC 2601 DIVISIONAL COURT FILE NO.: 057/17 DATE: 20170426 SUPERIOR COURT OF JUSTICE – ONTARIO [NOTE: PUBLICATION OF INFORMATION IDENTIFYING THE PARTIES HEREIN IS PROHIBITED BY s. 486.4 OF THE CRIMINAL CODE] RE: S.C. and others v. N.S. and others [1] BEFORE: NORDHEIMER J. COUNSEL: S. Hutchison, A. Smith & W. McDowell , for the moving party/defendant, N.S. I. MacKinnon, S. Feferman, J. Linden & A.

Chaisson , for the responding party/plaintiffs HEARD at Toronto: written submissions E N D O R S E M E N T [ 1 ] The defendant, N.S., seeks leave to appeal from the order of Matheson J., dated January 16, 2017, in which the motion judge dismissed the moving party’s motion for a declaration that the deemed undertaking rule did not apply to the disclosure of a draft affidavit of documents and the productions produced in the discovery process to his criminal counsel for impeachment purposes, and also dismissed his alternative relief for an order nunc pro tunc relieving him from the deemed undertaking. [2] [ 2 ] In order to obtain leave to appeal, a moving party must satisfy one of the two tests set out in r. 62.02(4) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, that reads: Leave to appeal shall not be granted unless, (

a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or (

b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. For the purposes of this motion, N.S. relies on the second test. [ 3 ] This action involves a claim that N.S. faces for damages arising out of an alleged sexual assault. N.S. also faces a parallel criminal charge (being heard in the Youth Court). N.S. elected to have different counsel represent him in the criminal and civil proceedings.

N.S. has possessed the discovery evidence, from this proceeding, at all material times. His civil counsel in this action provided the discovery evidence to his criminal defence counsel for the sole and express purpose of impeaching the evidence of the complainant (the plaintiff in this action), who had produced the discovery evidence to N.S., as she is required to do under the Rules of Civil Procedure . In providing the discovery evidence to N.S.’s criminal defence counsel, civil counsel expressly set out and relied on the

impeachment exception found in r. 30.1.01(6). Further, N.S.’s criminal defence counsel undertook only to use the discovery evidence to impeach the plaintiff/complainant in the criminal trial. [ 4 ] At the criminal trial, N.S.’s criminal counsel sought to impeach the plaintiff/complainant on a perceived inconsistency between her evidence in the criminal proceeding and the discovery evidence. An objection was raised and the criminal trial was adjourned. A motion was then brought by N.S. in this proceeding for the relief that I have set out above.

That relief was ultimately refused by the motion judge. [ 5 ] In terms of deciding this motion, I note that, if leave is granted, r. 62.02(7) expressly refers to the leave judge giving “brief” reasons. There is no corresponding requirement to give reasons if leave to appeal is refused. However, it has become the practice of this court to also give reasons when refusing leave to appeal. [3] In either event, the reasons given should still be brief.

The reasons should address the issue of whether either of the tests for leave to appeal have been met, and why or why not, but nothing more (save, when granting leave to appeal, setting out the precise issues for which leave to appeal has been granted). This approach should be followed because, as tempting as it may be for the judge granting leave to weigh in on the underlying issue, that effort will not necessarily assist the panel that will hear the appeal. [ 6 ] I am satisfied that N.S. should be granted leave to appeal. I reach that conclusion for the following reasons.

First, the issue dealt with by the motion judge is a novel one (which she acknowledged). Second, the approach adopted by the motion judge is not one that is provided for in r. 30.1. It is, in my view, an open question whether the language of the rule requires counsel, or a party, to follow the procedure adopted by the motion judge. It may or it may not.

It is certainly not clear on the plain wording of the rule that, for example, the impeachment exemption found in r. 30.1.01(6) requires pre-approval by the court. [ 7 ] It is well-established that, in determining whether there is reason to doubt the correctness of an order, the leave judge does not have to decide that the order is wrong.

Rather, all that the leave judge needs to be satisfied of is that the order is open to serious debate. [4] I am satisfied of that requirement in this case. [ 8 ] I am also satisfied that the issue raised in this case is of sufficient importance that leave to appeal ought to be granted. The motion judge has set out a regime for addressing situations where counsel or a party wishes to invoke one of the exceptions provided for in r. 30.1.

It is of importance to the profession, as well as to the administration of justice generally, to determine whether pre-approval to use discovery evidence under one of the exceptions contained in the rule is or is not required. It is an important issue and one that deserves review by an appellate court. [ 9 ] Consequently, the motion for leave to appeal is granted. The three questions for determination on the appeal are: (

i) must a party or counsel seek directions from the court prior to using evidence, referred to in r. 30.1.01(1), under one of the exceptions set out in r. 30.1? (ii) if the answer to question (

i) is yes, must notice of a motion seeking such directions be given to the party whose evidence is sought to be used? (iii) if the answer to question (

i) is yes, should the moving party be permitted to use the discovery evidence, in this case, for the purpose of impeachment in his criminal trial? [ 10 ] I fix the costs of the motion for leave to appeal in the amount of $3,500 inclusive of disbursements and HST but leave the disposition of those costs to the panel hearing the appeal. [ 11 ] Finally, I appreciate that there is some urgency in having this appeal heard given its impact on the continuation of the criminal trial. Counsel can speak to the Divisional Court office about obtaining an expedited hearing date. If there are any difficulties in that regard, I can be spoken to. NORDHEIMER J. DATE: April 26, 2017