[Indexed as: St. Lewis v. Rancourt]
Superior Court of Justice, R. Smith J.
May 9, 2012
Civil procedure — Motions — Cross-examination on affidavits — Defendant seeking to bring motion to allow members of public to attend cross-examinations on affidavits that were filed in his champerty motion in libel action — Case management judge refusing to allow defendant to bring open court motion on basis that open court principle does not apply to cross-examinations on affidavits — Defendant’s application for leave to appeal dismissed — Defendant not identifying any conflicting decision and no reason existing to doubt correctness of decision.
The plaintiff, a University of Ottawa professor, was suing the defendant for libel. The University of Ottawa was paying her legal fees. The defendant alleged that that amounted to champerty. The case management judge refused to allow the defendant to bring a motion to allow members of the public to attend the cross-examinations on affidavits that were filed in his champerty motion, holding that the open court principle is not applicable to cross-examinations on affidavits. The defendant applied for leave to appeal that decision.
Held, the application should be dismissed.
The decision relied on by the defendant did not amount to a conflicting decision for the purpose of rule 62.02(4)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as it was a decision of a case conference judge in a family law proceeding. There was no reason to doubt the correctness of the decision to refuse to allow the defendant to bring the open court motion. That issue had already been decided by a master in these proceedings, and the defendant had not appealed that decision. The defendant had not been denied procedural fairness. Moreover, an examiner’s office is not a public court, and allowing any member of the public to attend cross-examinations on affidavits in a civil dispute between private parties is unnecessary and unworkable.
R.v. Gordon,  O.J. No. 4043, 79 O.T.C. 161, 130 C.C.C. (3d) 129, 56 C.R.R. (2d) 285, 39 W.C.B. (2d) 531 (Gen. Div.), apld
Lower v. Stasiuk,  B.C.J. No. 1257, 2006 BCSC 864, 150 A.C.W.S. (3d) 1077, consd
Other cases referred to
Canadian Broadcasting Corp. v. New Brunswick (Attorney General),  3 S.C.R. 480,  S.C.J. No. 38, 139 D.L.R. (4th) 385, 203 N.R. 169, 182 N.B.R. (2d) 81, 110 C.C.C. (3d) 193, 2 C.R. (5th) 1, 39 C.R.R. (2d) 189, 66 A.C.W.S. (3d) 444, 32 W.C.B. (2d) 273; St. Lewis v. Rancourt,  O.J. No. 4392, 2011 ONSC 5923 (S.C.J.)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 62.02(4), (a), (b)
Authorities referred to
Bryant, Alan W., Sidney N. Lederman and John Sopinka, The Law of Evidence in Canada, 3rd ed. (Markham, Ont.: Butterworths, 1992)
Application for leave to appeal.
Richard G. Dearden, for plaintiff.
Denis Rancourt, for defendant.
Peter K. Doody, for University of Ottawa.
 R. Smith J.: — Denis Rancourt (“Rancourt”) is a former professor at the University of Ottawa who publishes a blog. He is being sued by the plaintiff, Joanne St. Lewis (“St. Lewis”), for libel for statements he made in his blog, criticizing the University of Ottawa.
 St. Lewis is also a professor at the University of Ottawa who prepared a report which concluded that there was no systemic racism in the University of Ottawa’s treatment of visible minority students. Her legal fees for her libel action against Rancourt are being paid by the University of Ottawa (“University”), which Rancourt alleges constitutes champerty.
 Rancourt seeks leave to appeal the decision of Beaudoin J., acting as a case management judge, wherein he refused to allow him to bring a motion (the open court motion) to allow members of the public to attend the cross-examinations on affidavits that were filed in his champerty motion.
 In his oral reasons, Beaudoin J. refused to allow Rancourt to bring a motion to permit members of the public to attend the cross-examination on affidavits because he held that the open court principle was not applicable to “cross-examinations or examinations for discovery that are out of court”. He further adopted the reasons of Master MacLeod, who came to the same conclusion.
 In his written endorsement dated February 8, 2012, at para. 3, Beaudoin J. held that the open court principle does not apply to out of court examinations and also stated that the issue had been specifically decided in Master MacLeod’s order of October 6, 2011 [ O.J. No. 4392, 2011 ONSC 5923 (S.C.J.)].
 Rancourt submits that Beaudoin J. erred in the following respects:
(a) he misdirected himself and mistakenly believed that the open court motion was to apply to examinations for discovery as well as cross-examinations on the affidavits. In his motion, Rancourt only sought to allow members of the public to attend the cross-examinations on the affidavits;
(b) he lacked jurisdiction at a case conference to refuse to allow Rancourt to bring his open court motion as it was a substantial issue and not a procedural matter; and
(c) Rancourt was denied natural justice and was not accorded procedural fairness as he was prevented from fully arguing his open court motion.
 St. Lewis and the University submit that Rancourt has not met the test to obtain leave to appeal. They further submit that there is no reason to doubt the correctness of Beaudoin J.’s decision because the same issue had already been decided by Master MacLeod and, as such, the principles of res judicata, abuse of process and collateral attack apply.
 St. Lewis further submits that the principle of res judicata is a rule of evidence and not a substantive issue and, as such, Beaudoin J. had jurisdiction to apply the doctrine of res judicata at a case conference. She further argues that the case management judge had inherent jurisdiction to decide the procedure to be followed in the action, including preventing Rancourt from bringing a motion on an issue that had already been decided, where no appeal had been taken from Master MacLeod’s decision.
 St. Lewis also argues that it would be an impermissible collateral attack on Master MacLeod’s order of October 6, 2011 to allow Rancourt to bring a motion and argue that members of the public are entitled to be present at cross-examinations as he had previously ruled as follows:
 St. Lewis finally submits that Beaudoin J. correctly applied this doctrine of res judicata, abuse of process and collateral attack and, as such, there was no procedural unfairness and no denial of natural justice to Mr. Rancourt.
 The test to obtain leave to appeal is set out in rule 62.02(4)(a) and (b) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194]:
62.02(4)(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.
(a) Conflicting decision and desirable that leave be granted
 Rancourt relies on the decision of Lower v. Stasiuk,  B.C.J. No. 1257, 2006 BCSC 864, at para. 24, as a conflicting decision by another judge. In Lower, supra, the case conference judge had decided a contested substantive issue at a family case conference. The decision was made without admissible evidence on a substantive issue, namely, whether a material change of circumstances had been proven by one party. On appeal, the case conference judge’s decision was overturned.
 The Lower case was a family proceeding under the British Columbia Family Rules. The purpose of the case conference in a family proceeding is “an informal hearing intended to promote resolution of issues by discussion and agreement”. A case management conference in a civil proceeding does not have the same primary purpose as a family case conference, namely, an attempt to resolve issues at an early stage to avoid further litigation. A civil case conference attempts to manage the ongoing litigation in a just, cost-effective and timely manner. As a result, I do not find that there is a conflicting decision of another judge that has been identified by Rancourt.
 I am also not persuaded that it is desirable that leave to appeal be granted as there is no conflicting principle, but rather a decision of a case management judge in a civil proceeding that was attempting to manage the litigation to move it forward in the most expeditious, just and least expensive manner possible by preventing Rancourt from rearguing a motion on an issue that had previously been decided in the same action by Master MacLeod.
(b) Reason to doubt correctness and matter of such importance that leave should be granted
 I do not find that there is any reason to doubt the correctness of Beaudoin J.’s decision to refuse to allow Rancourt to bring a motion to allow members of the public to attend the cross-examinations on the affidavits for the following reasons:
(a) this same issue had already been decided by Master MacLeod between the same parties, in the same action, and Mr. Rancourt did not appeal that decision;
(b) a case management judge in a civil proceeding may make procedural rulings, including preventing a party from bringing a motion to determine an issue that has already been decided. The application of the doctrines of abuse of process and collateral attack on an existing final order are legal principles that a case management judge may apply to ensure the just, expeditious and least expensive manner of proceeding. The doctrine of abuse of process is a flexible doctrine which allows the court to prevent the misuse of its process in a way that would be manifestly unfair to a party or would in some way bring the administration of justice into disrepute.
(c) In the text The Law of Evidence in Canada, 3rd. ed. (Markham, Ont.: Butterworths, 1992) by Bryant, Lederman and Sopinka, at para. 1954, the author states that res judicata is a rule of evidence and not a rule of substantive law:
Although the principle of res judicata is sometimes referred to as a rule of substantive law, the better view is that it is a rule of evidence. Essentially, the party against whom the suit or issue was decided is estopped from proffering evidence to contradict that result.
(d) Mr. Rancourt was not denied procedural fairness as he had previously sought permission to allow members of the public to attend at the cross-examinations on the affidavits before Master MacLeod and his request was denied. As a result, there was also no denial of natural justice.
(e) (i) In the criminal case in R. v. Gordon,  O.J. No. 4043, 130 C.C.C. (3d) 129 (Gen. Div.), at para. 108, Hill J. held that cross-examination on affidavits before an examiner was not subject to the open court principle.
(ii) In Gordon, supra, Hill J. followed the reasoning of the Supreme Court decision in Canadian Broadcasting Corp. v. New Brunswick (Attorney General),  3 S.C.R. 480,  S.C.J. No. 38, 110 C.C.C. (3d) 193.
At para. 108, Hill J. stated as follows:
. . . it may be that the open court philosophy protected under s. 2(b) of the Charter does not extend to every venue in which criminal law is administered — while it has long extended to courts themselves other considerations may apply to sites not historically considered to be public arenas. Imposing an open court imperative on the examiner’s environment, relating to cross-examination on affidavits filed in criminal proceedings, is unnecessary and unworkable. The record dealt with before the examiner, the affidavit and the cross-examination, are filed with the court and used in the pre-trial motion argued in open court.
(iii) A number of other authorities have also held that an examiner’s office is not a public court. R. v. Gordon, supra, at para. 104:
Several authorities have taken the position that an examiner’s office is not a public court and that an examiner may admit or exclude persons according to the circumstances of each case and according to what the examiner considers best calculated to secure the ends of justice: Smith et al. v. Walnut Dairy Ltd. et al.,  O.W.N. 801 (Master Conant) at 802 (affirmed  O.W.N. 803 (H.C.) at 803 per Hope J.); Baywood Paper Products Ltd. v. Paymaster Cheque-Writers (Canada) Ltd. (1986), 57 O.R. (2d) 229 (Dist. Ct.) at 233, 239 per Borins, D.J.C. (as he then was); Abulnar v. Varity Corp. (1989), 70 O.R. (2d) 168 (H.C.) at 170 per Henry J.
(iv) I agree with the above statements made in R. v. Gordon, supra, that an examiner’s office is not a public court and that allowing any member of the public to attend cross-examinations on affidavits at an examiner’s or solicitor’s office in a civil dispute between private parties is unnecessary and unworkable.
 For the above reasons, I conclude that there was no reason to doubt the correctness of either Beaudoin J.’s decision or of that of Master MacLeod. Given my finding on the first part of this test in rule 62.02(4)(b), it is not necessary to deal with the issue of whether the matters raised are of such an importance that leave should be granted.
 Mr. Rancourt’s motion for leave to appeal Beaudoin J.’s decision is therefore dismissed.
 The plaintiff and the University may make brief submissions on costs within ten days of the release of these reasons for decision, Mr. Rancourt shall have ten days to respond and the plaintiff and the University shall have seven days to reply.