court of appeal for ontario - academicfreedom.ca

BETWEEN:
Introduction
ONTARIO
SUPERIOR COURT OF JUSTICE
JOANNE ST. LEWIS
and
DENIS RANCOURT
COSTS SUBMISSIONS OF THE DEFENDANT
(Motion for Leave to Appeal)
Court File No.: 11-51657
Plaintiff
Defendant
1. The Defendant sought a reasonable application of the open court principle to all
out-of-court examinations of witnesses and affiants in the entire defamation action, on the
basis of his Charter right to a fair legal process (s. 2(b)).
2. An application of the open court principle to out-of-court examinations, following
the Dagenais/Mentuck test for court procedure openness, is a novel question that has not
been previously addressed in a motion or application for civil proceedings in Canada. The
Defendant’s motion was supported by the Civil Liberties Association, National Capital
Region.
Statement of the Civil Liberties Association, National Capital Region [Tab 1]
3. Following an efficient three-hour hearing held on March 28, 2012 before Justice
Smith, leave to appeal was denied primarily on the basis of res judicata, and also for failing
to meet the test to obtain leave to appeal.
4. Even though the University of Ottawa is voluntarily entirely funding the
Plaintiff’s private litigation, both the Plaintiff and the University (having identical interests in
the motion) seek costs against the Defendant.
1

Motion was reasonably brought
5. The Defendant has met the onus of demonstrating that the making of the motion
for leave to appeal, although unsuccessful, was nevertheless reasonable since:
(a) At the time of bringing the motion, it was reasonable to assume that the Lower v.
Stasiuk decision on appeal was a conflicting decision because it deals with a case
conference judge, although in family court, barring a non-procedural motion from
being brought; and
(b) Although some Reasons were generally stated, the Order of Master MacLeod was for
specific re-examinations in a refusals motion, not for all examinations in the
defamation action; and
(c) The Defendant had asked for this clarification at the hearing with Master MacLeod:
MR. RANCOURT: [...] So I’m curious as to, Master MacLeod, I’m curious as to
whether your decision about that the public is not allowed into cross-examinations on
affidavits for motions – is that actually going to be part of the Ruling – that
statement?
THE COURT: Well that’s what Mr. Dearden is asking me to do and I’m...
MR. RANCOURT: So that would be like...
THE COURT: ...and I am considering that.
MR. RANCOURT: Uh huh – so that would be, like, a general statement that would...
THE COURT: I’m...
MR. RANCOURT: ...establish that...
THE COURT: ...not making any general statements. I am dealing with this crossexamination
if I order it to take place and who can be there.
MR. RANCOURT: I see.
Transcript, October 6, 2011 motion hearing with Master MacLeod, p.93 l.25 to p.94 l.9 [Tab 2]
6. Therefore, it is submitted that the motion for leave to appeal was brought in good
faith and based on reasonable assumptions.
It was reasonable to oppose the res judicata argument
7. Given the above-mentioned specificity of Master MacLeod’s Order, it was
reasonable to oppose the res judicata position raised by the responding parties because the
jurisprudence has determined that the issue of res judicata has the “same question” test as its
focal point and that a fastidious approach to the “same question” test must be taken.
Hilltop Group Ltd. v. Katana, 2002 CanLII 39013 (ON SC) paras. 197-199; as cited in Hilltop v.
806046 Ontario Ltd., 2003 CanLII 45839 (ONSC), para. 21 [Tab 3]
2

Costs should not be awarded to the Plaintiff
8. The primary objective of an award of costs is indemnification. The principle of
indemnity is the focal point of regular costs orders.
Rules of Civil Proceedure, Rule 57.01 (1) (0.a) [Tab 4]
British Columbia v. Okanagan Indian Band, 2003 SCC 71; paras. 20-21 and further
[Tab 5, pages 1-2, 20-26]
9. The Plaintiff’s costs in this private litigation are being entirely paid by the
University of Ottawa on a voluntary basis and without conditions.
St. Lewis v. Rancourt, Reasons for Decision, Justice R. Smith, May 9, 2012; para. 2
[Tab 6, select pages]
Transcript of university president Allan Rock’s April 18, 2012 cross-examination;
p. 25 lines 12 to 22, and p. 35 line 23 to p. 36, line 6
[Tab 7, select pages; and whole transcript filed with the Court]
10. Whether or not this university funding is, in the present case, maintenance and
champerty does not change that there are no costs to the private Plaintiff to be indemnified.
11. In addition, a funding agreement that “raises the prospect of double recovery”,
from both paid legal fees and costs recovered from defendants in an action, is improper. In
the instant case, the University’s asserted oral agreement to fund the Plaintiff’s lawsuit
without any conditions raises such a prospect of double recovery if costs are awarded to the
Plaintiff.
McIntyre v. Ontario, 2002 CanLII 45046 (ON CA); para. 79 [Tab 8, select pages]
Transcript of university president Allan Rock’s April 18, 2012 cross-examination;
p. 25 lines 12 to 22, and p. 35 line 23 to p. 36, line 6
[Tab 7, select pages; and whole transcript filed with the Court]
12. For these reasons, it is submitted that costs should not be awarded to the Plaintiff.
Costs should not be awarded to the University of Ottawa
13. A non party who has not been granted leave to intervene as an added party should
not be awarded costs.
Rules of Civil Proceedure, Rule 57.01 (1) (0.b) [Tab 4]
Rules of Civil Proceedure, Rule 13.01 [Tab 9]
14. The University of Ottawa was a “Non Party Participant” or “Tiers non partie à
l’action” (French) in the Defendant’s motion for leave to appeal and representations by the
parties were not made addressing the costs implications of its participation.
St. Lewis v. Rancourt, Reasons for Decision, Justice R. Smith, May 9, 2012;
header of Reasons in French, and header of Reasons in English [Tab 6]
3

15. The University was directed by this Court to keep its oral presentation at the
motion to 15 minutes. The Defendant had a reasonable expectation that the University of
Ottawa (having identical interests to those of the Plaintiff) would not be awarded costs.
16. For these reasons, it is submitted that costs should not be awarded to the
University of Ottawa.
In the alternative, the costs claims are excessive
17. In the alternative, if any costs should be awarded, it is contrary to public policy
for both the University of Ottawa and the Plaintiff to seek costs, given that their interests are
identical, and the latter’s costs are being paid voluntarily by the former.
18. The entire motion was based on only one affidavit which was not cross-examined.
It was essentially centred on a single question of law (res judicata) which the Plaintiff argued
is not a substantive issue.
19. That the Gowlings law firm spent 15 hours researching the single point of issue
estoppel is difficult to understand. Additionally, that counsel for the Plaintiff, Mr. Dearden,
needed to research such points as the open court principle for 12 hours is likewise difficult to
understand given his known expertise in the area. It is also difficult to understand how
counsel for the University could have spent 13.4 hours to research the relevant law. The
claimed research times of the experienced counsels appear excessive, in view of the
straightforward legal questions of res judicata and the test for leave to appeal.
Rules of Civil Proceedure, Rule 57.01 (1) (c) [Tab 4]
20. The claimed amounts are far in excess of all past full-day and half-day motions in
this action and largely exceed what can be reasonably expected for the proceeding.
Rules of Civil Proceedure, Rule 57.01 (1) (0.b) [Tab 4]
Irrelevant and prejudicial statements
21. The Defendant respectfully requests that the irrelevant and prejudicial statements
of the Plaintiff and University in their costs submissions be disregarded by the Court,
pursuant to Rule 25.11(a):
(i) The scheduling of motions and examinations in the action is efficiently managed
by the case management judge and is not relevant to the instant costs
considerations;
(ii) The alleged “stings of libel” are not relevant;
(iii) The allegations of “partisan and biased supporters” are not relevant;
(iv) The allegation of misrepresentation in the Defendant’s affidavit (which was not
cross-examined) is contrary to the evidence.
All such elements are meant only to be prejudicial against the Defendant.
4

Order requested
22. The Defendant respectfully requests that no costs be awarded in the motion to
either the Plaintiff or the non party.
All of which is respectfully submitted.
May 22, 2012
Denis Rancourt
(Defendant)
5

List of Tabs
Tab Description
1 Statement of the Civil Liberties Association, National Capital Region
2 Pages from: Transcript, October 6, 2011 hearing with Master MacLeod
3 Hilltop v. 806046 Ontario Ltd., 2003 CanLII 45839 (ONSC)
4 Rules of Civil Procedure, Rule 57
5 Pages from: British Columbia v. Okanagan Indian Band, 2003 SCC 71
6 St. Lewis v. Rancourt, Reasons for Decision, Justice R. Smith, May 9, 2012
7 Pages from: Transcript of Allan Rock’s April 18, 2012 cross-examination
8 Pages from: McIntyre v. Ontario, 2002 CanLII 45046 (ON CA)
9 Rules of Civil Procedure, Rule 13
6

TAB 1

ancourtlibelcasecomment http://civil-liberties.ncf.ca/letters/rancourtlibelcasecomment.html
CIVIL LIBERTIES
ASSOCIATION
NATIONAL CAPITAL
REGION
FOUNDED 1968
www.ncf.ca/civilliberties
March 12, 2012
ASSOCIATION DES DROITS
CIVILS
RÉGION DE LA CAPITALE
NATIONALE
FONDÉE 1968
At the March 5, 2012 meeting of the directors of the Civil Liberties Association,
National Capital Region, Joseph Hickey, a student at the University of
Ottawa and a member of their Senate, explained that currently there is an
issue regarding whether to allow the public observation of out-of-court examinations
of affiants and witnesses in the defamation action of St. Lewis v. Rancourt,
before the Ontario Superior Court of Justice.
He contends that while it is customary practice that attendance at out-of-court
examinations of affiants and witnesses is not available to the public and
media, these procedures form an intrinsic part of the legal process that is
distinct from the private process of discovery, and that denial of public
observation of these court processes acts to limit the Charter right to freedom of
expression, which includes freedom of the press.
We understand that the examinations of affiants and witnesses will relate to
a report of the Student Federation of the University of Ottawa (SFUO) about
systemic discrimination at the U of O and a University evaluation of the
SFUO's report authored by the Plaintiff, Joanne St. Lewis, a law professor
at the U of O. It was a published criticism of her report by the Defendant
Denis Rancourt that occasioned the statement of claim, or so we have been
informed.
We agree with Mr. Hickey that transparency is a vital component of a
well-functioning justice system in a democracy. Particularly on a matter
relating to freedom of expression, the public should be able to know firsthand
the relevant facts leading up to the moment when the Defendant expressed himself
and which is now the subject of a legal action. We understand Denis Rancourt is
self-represented. In this case, it is especially important in an adversarial system that
non-partisan observers be allowed, in the interests of having something more
approaching balance in the courtroom.
1 of 2 3/12/2012 8:58 PM

ancourtlibelcasecomment http://civil-liberties.ncf.ca/letters/rancourtlibelcasecomment.html
Transparency in the courts is of concern to our Association, in view of promoting a
fair and just legal system for all Canadians. It is our Association's position that a high
degree of caution be exercised regarding any legal measure that would limit public
access to court procedures.
2 of 2 3/12/2012 8:58 PM

TAB 2

-
.1
''l
APPEARANCES:
on
Mr. R. Dearden
Denis Rancourt
SUPERIOR COURT OF JUSTICE
JOANNE ST. LEWIS
^^-; -^{ago,f
rlD L
DENIS RANCOURT
**********
MOTION
HEARD BEFORE MASTER C. MACLEOD
Case Number: cv-11-51657
October 6, 20LI at OTTAWA, Ontario
**********
Counsel for the Plaintiff
Self represented

WI TNES SES
EXHIBLT }.IIJMBER
m--^-,-i-, ^",lered:
Iro.rli)ul_ayL ULL
Tr-nqcr i nf ('rrmn I al .:r-l'
Counsef Notrfied:
(r)
Table of Contents
SUPERIOR COURT OF JUSTICE
TABLE OF CONTENTS
EXHIB]TS
**********
+-k**+***:/(*
Exam Cr- Re-
1n-CLLref Exam. Exam.
LJIIT N '.N !.J- O
r L U
JL
October 13, 2011
November 9, 2C)II
November 10, 2011

pornt.
68.
Submissions - Mr L-/CClILtrUIl
THE COURT: Ckay. Let me I us-- stop you f or a
m.monf :nd irrst ask the Court staff whether
J q*
rherzt re r-orf enl- 1_
Lrruf/ har wF n-oceed -Y-"
and Contlnue
because I'm not going to keep everybody sitLrng.
We're going Lo have to take a break ar some point.
If we can finish this by 2:a0 then I'll continue
until 2200 provided that's okay with the two of
you.
THE REGISTRAR: Maybe if we coufd jusc have a five
minute recess.
THE COURT: All right, so we're gonna just take a
y€S, Mr. Dearden?
MR. DEARDEN: Master, maybe I should let them
know, in fairness, T have anoLher poinc to address
Lo you wi th respect to what you see aL t ab et-ghc
of the r-omnendium which is so I would take about
five minutes to make my point ai,rout Mr. Rancourt
h- i nr-rino sunnorLers i nto the cross-examinat i ons
" *v-v'
over my ob3ections before the Examination for
fli qr-r-rverrz nr-r-r-1;1961.
And the gentfeman that wrote that I attacked
: qFl f -renre.sented witness and defamed me and
Professor St. Lewis is sitting right there in the
plaid shirt, and this is an extremely detrimental
that such a thing would happen in the cross and I
want to make submissions to you on that but after
you have. . .
THE COURT: All right.
MR. DEARDEN: after you've heard from Mr.
Rancourt. So I would be five minutes to make a
submission that members of the public don't qo

69,
Submissions - Mr n^--l^^
uEar uu11
into a cross-examination in Cornell Catana's
offices.
MR. RANCOURT: I guess I will need cime to respond
i-r-l f hat- - Masf er Macleod.
THE COURT: Yes, well...
MR. DEARDEN: It's a term of the order that I'm
- -^r- fo nake- Masfer...
9Lrrrrld d'JK yL,u
THE COURT: Yes , I' Il deal with that when we get
to it.
MR. RANCOURT: And the question of relevance will
T ..i*come
uP, _L rmaglne.
THE COURT: I shouldn't think so. It's a term of
the order. If I order a re-attendance to ask
ouest i ons srrr-h ;s narf of f he rel i ef - -l-en Mr.
Dearden js simply indicalinq to you rhat he'll be
asking that a term of that order, that other
nart i es arF f o be excl-uded...
MR. RANCOURT: Master MacLeod...
THE COURT : ...not pa rt i es .
MR. RANCOURT: MasLer Macleod, I was noL prepared
Lo argue this point.
THE COURT: Well we're not going to pre-argue it.
We'1I get to iL when we qet to it.
MR. RANCOURT: Okay.
THE COURT: I' m trying to figure out how much
longer thrs is qoing to take because if it was
ooiner f o l-:ko more than two hours then it should
be a special appointment motion. It was not down
for that. It was down for an hour.
MR. RANCOURT: Master Macleod, can I make another
noinf wh"i r-h T f eel i s \/F-\/- \rAr\/ imnorl_ :nll
THE COURT: Just wait a second, please.

10
rul
,tl
'"1 I
.^l
t
93.
Submissr-ons - Mr. Rancourt
crossiro a Ii.a anel_ ummr- so I - it was what I
would characterLZe as an aggressive confrontation.
F-rzorrrnno - momherq of f he 6 l-. I i n cf r.'aA {/er\/ LVg!JV]1g ILLETLLVU!J U! LtlU vUUflU JLAyCU V-__y r-: lm
and simply asked to be g-iven a reason. They were
nof oirren ^ reaSOn and then Mr. Dearden pvnl:ined
that this would be used to argue malice and so on
against me evenLually, but that we would go on
that we would continue. We did continue, and the
fact rhat the pubLic were present di d nor disrupu
the proceedings in any way, and none of the
rnformation that would have been considered
nri rzi l onod r^r: q ri i rrr r l aod i n any way, ro my
rznnr^rr arrna ^rd so there was no issue. And T rm
certain that if Catana had asked the public to
leave and explained that these we-re pri vate
nremiseq end fhar fhev Ip]r thar lhev were
v' ""'
entitled to demand that unwanted persons leave,
I'm sure that the members of the public - I can't
speak for them, buL I have the impression they
would have left, I think. But it was the
i nfe-nrof:fi nn of
r-orfainlrz
.inrern-eter^l
"",.Y\t,Ill
-
the inLornrat:-i nn - I
the noinf r^rher1 he Sa jd "We' 'F ooi no
fl-:1 Mf. Deafden g6:ada,.l /nh\
\a/F di,-J eir-r on and thefe WaS n.\ rni or-rrnt_ir
JItCl trler-e was ,_s_y_-Jn.
-.
aO On" and
Y\
So I'm curious as to, Master Macleod, I'm
curious as to whether your decisj-on about that the
nuhl i r- i s nof allowed into CroSS-examinations on
affidavits for motions is that actually going to
lre n:rt nf l-ho Rrr'l ino 1-hat Statement?
THE COURT: WelI that's what Mr. Dearden is asking
me to do and I'm.
MR. RANCOURT: So that would be like...

94.
Submissions - Mr. Rancourt
THE COURT: ...and T am considering that.
MR. RANCOURT: Uh huh so that wquld be, Iike, a
r:onor: I sf aIement that would. ..
THE COURT: I'm.
MR. RANCOURT: . establish that. . .
THE COURT: ..not making any general statements-
T am dealing with this cross-examination if I
order it to take place and who can be there.
MR. RANCOURT: I see.
THE COURT: The Court can certainl-y give direction
about that.
MR. RANCOURT: Okay. Uumm - so that was how I
understood what was qoing on with regards to
nrrhl i r- nrespnce at the cross-examinations.
point.
Uumm - now we could move on to the second
THE COURT: That would be good.
MR. RANCOURT: What was the secot-td point? I'm
sorry. I'm - it was...
THE COURT: Whether I should order a f urt-her
examination or not.
MR. RANCOURT: Oh - yes. Thank You.
THE COURT: Or the questions to be answered - I
haven't yet decided how...
MR. RANCOURT: Yes - thank You.
THE COURT: ..and whether there will be a follow
rln ovami nat i On Of nOL.
MR. RANCOURT: Yes. Well - this - I understand my
statements now to be somewhat of a response to the
presentation that Mr. Dearden lust made.
THE COURT: Right.
MR. RANCOURT: And I want to explicitly say that

136.
Reasons for Decision - Master Macleod
ADJOURNED
*********
As approved by:
Master C. Macleod
Srrnpri or eorrrl_- Of JusLiCe

CERT I FI CATE
EVTDENCE ACT,
I, C. Shail, certrfy that this
tr^a.Jrscr Lp'-1on of the recording
Denis Rancourt in the Superlor
El-gln Street, Ottawa, Ontzrr:-o,
Number 041 1-51-20111006, Court
certif ied Ln F-orm 1.
November 9, ?-07I
AG 0087 (rev. 07-01)
131
OF TRANSCRIPT
suBstrcrroN 5 (2)
document is a true
of Professor J. St
Court of Jr:strce,
taken from diqltal
No . 51 , lvhr cLr ha.s
,
"/i
-t" /,"t
:i!-.-).
'i i
' I
.', !
t-t-.LJ) .
and accrlrate
. Lewis v.
held at 161
reco rd:-rrg
beet-r
( Date ) C. Shail, Court Monrtor

TAB 3

SUPERIOR COURT OF JUSTICE
ONTARIO
BETWEEN: HILLTOP GROUP LIMITED
Court File No. 03-CV-245753 CM1
Date: 20031209
AND 806046 ONTARIO LIMITED, FRANK KATANA, and THE KATANA
FAMILY TRUST, M.A.K. SHOES INC. and KAPER HOLDINGS LTD.
(Defendants)
BEFORE: M.A. SANDERSON J..
COUNSEL: Robert Malen, for the Plaintiff
Louie Sopov, for the Moving Party Frank Katana
E N D O R S E M E N T
[1] The Defendant Frank Katana (“Katana”) brings this motion for an order dismissing or
staying the action brought by Hilltop Group Limited (“Hilltop”) as against Katana or striking all
references to Katana in its Statement of Claim.
INTRODUCTION
[2] Katana bases his request for relief on the doctrines of res judicata and abuse of process.
His counsel outlined the history of the litigation between the parties that he submitted was
relevant to his submissions.
The First Action
[3] In April 21, 1995, Mackenzie J. dismissed an action brought by Katana against Hilltop
and ordered inter alia Hilltop’s damages against Katana as a result of Katana’s wrongful
registration of a Certificate of Pending Litigation (“CPL”) against the Wilson Property to be
determined at a Reference. On June 3, 1996, Mackenzie J. quantified the damages owing by
Katana to Hilltop at $2,105,572.76 plus interest and costs.
[4] Katana unsuccessfully appealed to the Court of Appeal.
The Second Action
[5] After April 1995, but before the Reference was held, Katana transferred his interest in 7
Seaburn Place, Scarborough (“Seaburn”) to his wife alone, for no consideration. She then
mortgaged it to the Grudens, Katana’s sister and brother-in law.
2003 CanLII 45839 (ON SC)

[6] When Hilltop learned of the transfer of Seaburn, it commenced an action to set it aside as
a fraudulent conveyance.
[7] Shortly after Mackenzie J. specified that Katana owed Hilltop more than two million
dollars, Katana deposed in an affidavit sworn July 17, 1996 that he had no substantial assets and
was only receiving a small and irregular salary from one of his businesses.
[8] During the trial before Mackenzie J., Katana had maintained he had a substantial interest
in several companies, to which referred as the Valleywood Companies (“Valleywood” or “the
Valleywood Companies”). In July 1996 he was claiming that he had no such interest. Hilltop
claimed Katana had fraudulently conveyed Seaburn to prevent Hilltop from collecting upon its
judgment against Katana.
[9] On a motion in the Second Action, Boland J. made an Order adding Valleywood, the
Katana Family Trust, MAK Shoes Inc., Snellcrest Gardens Inc., Mellow Gardens Development
Inc., and 797820 Ontario Limited to be added as party defendants and allowed a Certificate of
Pending Litigation to be registered against properties in the name of Valleywood, which remain
unsold.
[10] In granting that Order, Boland J. specifically addressed the issues of prejudice and
balance of convenience:
All interested parties...were served with notice of this motion. The motion was heard over a period of three
days and all interested persons filing factums were heard at length. The plaintiffs have a judgment for
damages against the defendant Frank Katana in the sum of approximately $4,000,000. That judgment was
obtained in Action No. 92-CQ-12373....The Wilson lands were in the process of being sold to Hilltop. Frank
Katana registered a certificate of pending litigation against the Wilson lands. His action for specific
performance was heard over a six week period and was dismissed. The trial judge awarded damages on the
counterclaim to Hilltop and the Wilsons in the sum of approximately $4,000,000. The damages arose out of
the wrongful registration [by Katana] of the certificate of pending litigation. The appeals of Katana and his
numbered company were both dismissed. Shortly thereafter Hilltop and the Wilsons commenced this
fraudulent conveyance action. The moving parties [Hilltop] have raised a strong prima facie case. Having
regard to the history of the previous litigation, the finding of fact against Katana, and the evidence on this
motion, including the weakness, contradictions and inconsistencies in the evidence of Katana, I am satisfied
that there will be irreparable harm if the interests of the moving parties are not preserved pending trial.
Although security before judgment is unusual, I am satisfied that it is necessary in this case and that the
balance of convenience requires the granting of the relief sought...Having reviewed all the material before
me and considered the submissions of counsel, in my view it is in the interest of justice that all persons who
have an interest in this matter be added as parties to this action....
[11] During the course of the argument of the motion before Boland J., counsel for Katana and
the Katana Family Trust attempted to rely on res judicata and abuse of process. Boland J. held
there was no persuasive evidence to support those submissions.
[12] Hilltop’s allegations in its Statement of Claim in the Second Action included the
following:
(a) “…the defendant Frank Katana carries on business as a land developer through
several companies in which he has an interest, either direct or indirect. The said
defendant’s major development is known as Valleywood (the trade name of the
2
2003 CanLII 45839 (ON SC)

defendants Snelcrest Gardens Inc., Mellow Gardens Development Inc., 797820
Ontario Limited)…”
(b) Frank Katana is an owner in Valleywood through his company the defendant
M.A.K. Shoes Inc.. The plaintiff states that the said defendant may also own and
control Valleywood through his co-defendant Ljubica Katana or through trust
arrangements involving other members of his family. The plaintiffs state that if
ownership in the Valleywood companies (through M.A.K. Shoes Inc.) is held in
the name of the Katana Family Trust, (the “Trust”), the plaintiffs state that they
are entitled to reach the assets of the said Trust on the basis of principles of
subrogation and also on the basis that the Trust is illegal and/or it is a sham, and
that Frank Katana is the beneficial owner of any and all assets owned by this
“Trust”.
[13] In its Amended Statement of Claim in the Second Action, Hilltop also alleged Katana had
acted as Valleywood’s agent, and therefore they should be held jointly and severally liable for
the damages Katana had been ordered to pay Hilltop in the First Action. In addition, it sought a
declaration that Katana was the beneficial owner of the assets held in the Katana Family Trust.
[14] The Second Action took approximately 5 years to come to trial and approximately 40
days to try in the spring and fall of 2001. The evidence was completed on June 22, 2001. When
the trial re-commenced on September 4, 2001, Hilltop sought injunctive relief against
Valleywood on the basis that the evidence at trial had established that Hilltop had a strong prima
facie case, representatives of Valleywood had given false and misleading evidence on
interlocutory motions and there was good reason to conclude that if the order was not made, the
assets of Valleywood would be dissipated pending final disposition of the action.
[15] After hearing the motion for three days in September 2001, Greer J. granted Hilltop
injunctive relief.
[16] Subject to payment out of operating funds, she ordered monies owing to Valleywood to
be held in trust pending final disposition of the Second Action.
[17] In her Reasons respecting the motion for injunctive relief, Greer J. noted the following:
(a) in the First Action, Hilltop had obtained judgment against Katana (the President of
Valleywood) in the amount of $2 million (which, with interest and costs,
approximated $4 million);
(b) after Hilltop obtained that judgment, Katana took steps to make himself judgmentproof
through fraudulent conveyances, which gave rise to the Second Action
(commenced in June 1996);
(c) weakness, contradictions and inconsistencies in Katana’s evidence at trial;
(d) evidence at trial showing Katana’s failure to disclose.
[18] Valleywood’s and the Katana Family Trust’s application for Leave to Appeal to the
Divisional Court was dismissed on November 5, 2001.
3
2003 CanLII 45839 (ON SC)

[19] On June 20, 2002 Greer J. gave judgment in the Second Action in favour of Hilltop. Her
findings included the following:
(a) Katana, his wife, sister and brother-in-law had made a fraudulent conveyance and
had fraudulently registered a mortgage;
(b) Katana is the beneficial owner of all of the assets held by the Katana Family Trust
formed to protect Katana’s interest in MAK Shoes Inc.;
(c) Valleywood is jointly and severally liable with Katana for the amount of the
judgment in the First Action, which with accrued interest, costs and punitive
damages by June 20, 2002 totalled approximately $5.5 million;
[20] Greer J. dismissed Katana’s counterclaim for reasons including the following:
Katana orchestrated the whole fraudulent conveyance scheme to get assets out of his hands....False and
misleading representations were made by Katana … to the CIBC, which spilled over into the Action before
me, to the municipal and government authorities to circumvent planning laws, to the court in interlocutory
proceedings in this action, in the various transactions involving MAK and Celebrity shares and redemptions
and loans. The Trust was a sham put forward by Katana to protect his beneficial interest in MAK and
Valleywood.
[21] Res judicata and “abuse of process” were raised before Greer J. Her Reasons released
June 20, 2002 include the following at paragraphs 194-206:
The Issues of Abuse of Process, Res Judicata and Issue Estoppel
[194] The Defendants, as part of their Counterclaim, allege abuse of process, as they say that the issues in
the Trial before me should be dismissed because those claims are now res judicata and an abuse of process.
They further claim that issue estoppel also applies to the Plaintiffs’ claims. The issues before MacKenzie J.,
are set out in his Reasons for Judgment dated April 21, 1995. The issues were broken up into those relating
to the Wilsons, and those relating to DiBattista and Hilltop. Since the Wilsons were let out of the action
prior to the commencement of Trial before me, I make no comments on those. The issues relating to
DiBattista and Hilltop include whether DiBattista was a confidee of, and owed a fiduciary duty to Katana in
respect of certain information and documents obtained by him from Katana through Kikas, and if so, were
these documents confidential in nature. They also include whether DiBattista wrongfully interfered with any
contractual relations existing between the Wilsons and Katana. MacKenzie J. found no liability on the part
of DiBattista and Hilltop. Further, it is clear in his Reasons on the Motion to re-open, that MacKenzie, J.
saw the issue of the fraudulent preference/conveyance then being alleged against Katana and his wife, as
being “sufficiently distant from the primary issues of liability and quantification of damages” that were the
subject of his Judgment. He therefore saw no justification to reopen the proceeding before him.
[195] In the case before me, a great deal of evidence that was proffered from the action before MacKenzie J.,
and was by necessity was raised before me, in order to provide the full picture of how Valleywood was
developed and what it consisted of. That does not mean that there has been an abuse of process or res
judicata. The fact that the pleadings in this action were amended to include more claims than just the
fraudulent preferences/conveyances, does not make it an abuse of process. In fact, the issue of res judicata
was raised by the Defendants on the Motion before Boland J., and she dismissed that issue. This does not
mean, of course, that the Defendants cannot raise it at Trial before me. They have done so.
[196] Donald J. Lange, in The Doctrine of Res Judicata in Canada, Butterworths, 2000, at pp. 12 –14 sets out
parameters of the doctrine. The burden is on the party proving res judicata. The Court may look to the
documentation behind the formal judgment to determine what was decided for the purpose of res judicata.
See: Rolston et al. V. Lapa Cadillac Gold Mines (1937) Limited et al. [1950] O.R. 103-114, citing
Johanesson v. Canadian Pacific Railway, 32 Man. R. 210, [1922] 2 W.W.R.341, 66 D.L.R. 599, affirmed 32
Man. R. at 221, [1922] 2 W.W.R. 761, 67 D.R.L. 636. Lange, in summarizing the ambit of inquiry, says it is
4
2003 CanLII 45839 (ON SC)

almost open-ended. The Court is entitled to look at the Record, the reasons for Judgment as well as
pleadings and formal judgment, may examine evidence and proceedings at the trial. Facta may also be
examined. In Bear Island Foundation v. Ontario, (1999) Carswell Ont 3603, 126 O.A.C. 385, the Court of
Appeal notes that res judicata is a form of estoppel. It states in para.29 that it “means that any action or
issue that has been litigated and decided cannot be retried in a subsequent lawsuit between the same parties
or their privies.” That case also notes that there can be an element of judicial discretion even when issue
estoppel would otherwise apply.
[197] The issue of res judicata is tied in with that of issue estoppel as the same question test is the focal
point for issue estoppel. Lange, at p.38, supra, says that the traditional view is that the same question has
been decided, that is I must be deciding the same question, which has actually been decided in the action
before MacKenzie, J., not whether it could have. Lange refers to the decision of McLachlin J. in R. v. Van
Rassel, [1990] 1 S.C.R.225 at p.238, where she states that issue estoppel “applies only in circumstances
where it is clear from the facts that the question has already been decided.” Lange further notes that at p.49
that an issue, which was not raised in the first action as a defence, is not barred in the second action when the
second action is based upon a separate and distinct cause of action. Cause of action estoppel is limited to
issues, which can be fairly regarded as having been disposed of on their merits, on admission, or by
compromise, says Lange. Holmstead and Watson, in their Ontario Civil Procedure, (Carswell looseleaf) at
21-146 set out the differences between cause of action estoppel (claim preclusion) and that of issue estoppel
(issue preclusion). By definition, issue estoppel has a much narrower scope than cause of action estoppel.
An analysis of the causes of action before me were those before MacKenzie J. in the action by Katana
against DiBattista and Hilltop. Therefore, cause of action estoppel does not apply to the case at bar.
[198] Holmstead and Watson at 21-151 also note the four requirements for the application of res judicata
generally are firstly that the two actions must involve the same parties or their privies. Secondly, the claim
now sought to be asserted must have been within the prior court’s jurisdiction. Thirdly, the prior
adjudication must have been on the merits, and lastly, the prior decision must have been a final judgment.
[199] A careful analysis must be made of the two actions and the Reasons and Judgment of MacKenzie J. to
see if issue estoppel applies. As our Court of Appeal said in Heynen v. Frito Lay Canada Ltd. et al. (1999)
45 O.R. (3d) 776 at p.782, the courts have taken a fastidious approach to the “same question” test. They
state:
Although at a high level of generalization, two proceedings might seem to address the same
question, this requirement of issue estoppel is met only if on careful analysis of the relevant
facts and the applicable law the answer to the specific question in the earlier proceeding can be
said to determine the issue in the subsequent proceeding.
Further, our Court has held that sub-issues, which underlie the main issue determined in another matter, are
not barred by issue estoppel in a new action in which they are issues. See: Bank of Montreal v. Maple City
Ford Sales (1986) Limited et al. (2000) 51 O.R.(3d) 523.
[200] The Supreme Court of Canada, in a recent decision of importance in the area of issue estoppel … in
Danyluk v. Ainsworth Technologies Inc. [2001] 2 S.C.R. 460, [2001] S.C.J. No. 46, 2001SCC44, File
No.27118, noted that estoppel is a public policy doctrine designed to advance the interests of justice. It sets
out the same pre-conditions, which I have already noted. The Court said, however, in Danyluk, supra, if all
conditions are met, the Court may determine whether, as a matter of discretion, issue estoppel ought to be
applied. It depends on the entirety of the circumstances of the case. In Danyluk, supra, the decision of an
administrative tribunal was involved in the first instance. See also: Downtown Eatery (1993) v. Ontario
(2001) 54 O.R. (3d) 161 (Ont. C.A.), where the common employer issue raised in the Counterclaim against
the corporations who had not been sued in the first action, did not constitute re-litigating an issue in the
second action, and the second action could be determined on the merits.
5
2003 CanLII 45839 (ON SC)

[201] If I am wrong in my analysis of issue estoppel, I exercise that judicial discretion that the Supreme
Court of Canada set out in Danyluk, supra, in the circumstances of this case.
[202] It is the position of the corporate Defendants and the Trust that the issues were previously litigated and
that the same facts have been raised before me. They say that these equitable doctrines are there to ensure
that there is an end to litigation. The corporate Defendants and the Trust were never part of the earlier
action. The action was that of Katana, and I have set out the issues, which MacKenzie J. said were before
him involving Hilltop and DiBattista. None of those issues were before me. In the opening of these
Reasons, I have listed the issues as set out in the various pleadings. None of those were before MacKenzie J.
Katana, of course, is involved in both proceedings, given the nature of the proceedings. Kikas is a key
player in both, and while there is an evidentiary overlap, the cases make it clear that this is not sufficient to
bring res judicata and issue estoppel into play. The Judgment of MacKenzie J. had nothing to do with the
fraudulent conveyance issues. The Judgment of MacKenzie J. had nothing to do with the Trust and its
interplay in the action before me. There was no finding in the earlier action, that Katana was Valleywood's
agent or that he beneficially owns a substantial portion of it. The Wilson lands, in the action before me,
came up in a totally different context, being that of their transfer by assignment from Hilltop to West
Mayfield.
[203] In my view, the Plaintiffs have not set up the same proceeding or the same issues in a different guise.
The privies in the two cases are clearly different with the exception of DiBattista and Hilltop and Katana.
Although the Defendants tried to argue that the Plaintiffs were really re-arguing the issue of breach of
contract again, I do not see this as the case before me. Nor were the issues raised in the various
Counterclaims ones that were before MacKenzie J. I cannot see where Hilltop and DiBattista could have
earlier raised the issues of fraudulent conveyance the Trust being a sham, in the earlier action. The Trust
was unknown in the earlier action.
[204] Abuse of process is a more general term than issue estoppel, and it is a discretionary principle that is
not limited by any set number of categories. Molloy J. in Kenderry-Esprit (Receiver of) v. Burgess,
MacDonald, Martin & Younger, (2001) 53 O.R. (3d) 208 applies the principle set out by the Finlayson, J.A.,
writing for the majority in Canam Enterprises Inc. v. Coles, (2000), 51 O.R. (3d) 481 [2000] O.J. No.46067
(C.A.) at para. 31 [p.490 O.R.]:
Abuse of process is a discretionary principle that is not limited by any set number of categories.
It is an intangible principle that is used to bar proceedings that are inconsistent with the
objectives of public policy. The doctrine can be relied upon by persons who were not parties to
the previous litigation but who claim that if they were going to be sued they should have been
sued in the previous litigation.
[205] The Court looks at whether the same evidence is needed to support the issues on both cases. It looks
to see if a defendant had been named in the earlier proceeding, and had been able to defend the main action,
that defendant would have been able to address the issues. It is the position of Valleywood, that its
components Snelcrest, Mellow and #797, should not have been sued in the action before me. They say that
if DiBattista and Hilltop wanted to go after Valleywood to collect on the Judgment of MacKenzie J.,
Valleywood and its components should have been added as parties to DiBattista’s Counterclaim. While
hindsight, after the Trial before MacKenzie, J. is helpful, it is not the case when one examines what the
earlier action was all about and who the privies were. Katana, was the plaintiff in that action, not
Valleywood. He distanced himself, in all documentation in that case, from Valleywood, to protect the
Wilson lands and the agreement in his name. If he was to have a counterclaim against him, he wanted it to
be personally against him. This happened in other times in the many lawsuits brought by Katana relating to
the Valleywood lands. The other actions have been noted by me earlier in these Reasons.
[206] In Toronto (City) v. C.U.P.E., Local 79, [2000] 187 D.L.R. (4 th ) 323 (Ont. Div. Ct.) the Court looked
at what amounted to abuse of process. The Court quoted at pp.338 and 339 the Judgment of Lord Denning
in Eagle, Star and British Dominion Insurance Co. v. Heller, 140 S.E. 314 (1927) at p.239, where he said that
6
2003 CanLII 45839 (ON SC)

in some cases where the self-same issue has been decided against a party in previous proceedings, the courts
have said that they will not allow the matter to be raised again in a subsequent proceeding. Lord Denning
looks at this as more issue estoppel than abuse of process. He also later notes that an abuse of process can be
the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final
decision against the intended plaintiff.
[22] On October 24, 2002, Greer J. released Supplementary Reasons for awarding Hilltop
punitive damages of $200,000, including the following findings:
(a) the Defendants throughout the proceedings had engaged in malicious, oppressive and
high-handed conduct to obfuscate, delay and defeat Hilltop’s claims through lies,
deceit, false affidavits and fraudulent conduct;
(b) the Valleywood Defendants and Katana had lied to banking and municipal
authorities, had sworn false affidavits and had otherwise conducted their business
without integrity;
(c) their conduct was planned and deliberate to defeat Hilltop’s legal rights and to strip
Valleywood of assets;
(d) their conduct was egregious. Punitive damages would serve the purposes set out by
the Supreme Court of Canada in Whitten, including retribution, deterrence and
denunciation.
[23] The Notices of Appeal of Valleywood and the Katana Family Trust include the following
grounds:
The trial judge erred in failing to apply the principles of issue estoppel and res judicata and consequently, in
holding the Valleywood Companies liable for payment of the judgment obtained by Hilltop against Frank
Katana. (Valleywood Appeal)
The learned Trial Judge erred in failing to consider and apply the principles of res judicata and issue
estoppel. (Katana Family Trust Appeal)
Katana did not serve a Notice of Appeal from the judgment of Greer J.
The Present Action
[24] In the Present Action, commenced on March 19, 2003, Hilltop seeks a declaration that
Katana (not the registered owner 806046 Ontario Limited (“806”), is the legal and beneficial
owner of a property located at Mayfield Road and Kennedy Road in Caledon (“the Mayfield
Property.”)
[25] Early in the proceedings, Hilltop moved for a Certificate of Pending Litigation against
806, Katana and others. The motion first came on for hearing before Master Albert on April 22,
2003.
[26] Just before the motion was to be heard, counsel for 806 advised counsel for Hilltop that
the Mayfield Property had been sold and that an adjournment of the motion was being sought.
The parties agreed to adjourn the motion to July 10, 2003 on terms, including a condition that the
Mayfield Property would not be conveyed or further encumbered in the interim. 806 would
provide Hilltop with security (to replace a Certificate of Pending Litigation) in the form of a
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2003 CanLII 45839 (ON SC)

$2,366,350.00 mortgage against the Mayfield Property to be held by a trustee pending
disposition of the Present Action.
[27] 806’s counsel advised Hilltop’s counsel by letter dated May 7, 2003 that 806 is owned by
638739 Ontario Limited (“638.”) Ljubica Katana and Anton Kikas each own 50% of the shares
of 638.
THE LAW
Katana’s Submissions
[28] Counsel for Katana submitted that Hilltop is seeking relief it sought or could have sought
in the First and Second Actions. Katana is now being unfairly faced with the Present Action.
Res Judicata
[29] Counsel for Katana submitted this Court should exercise its discretion and stay or dismiss
the Present Action against Katana. He referred to Holmstead and Watson, Ontario Civil
Procedure, (Carswell: looseleaf, June 2000) at 21-147, as follows:
The doctrine res judicata is not a mere technical rule, but a fundamental rule of repose for litigants and for
society. Both aspects of the doctrine have the same objective – judicial finality – and this salutary principle
is founded on the generally recognized public policy that there must be some end to litigation.
…
First, that the state has an interest that there should be an end to litigation and secondly, that no individual
should be sued twice for the same cause.
[30] He also referred to Holmstead and Watson, supra at 21-146:
Res Judicata is a form of estoppel and operates through the application of two doctrines or rules: claim
preclusion (or cause of action estoppel) and issue estoppel (issue preclusion). Cause of action estoppel
simply means that where the legal claims and liabilities of two parties have been determined in a prior
action, the claims may not be relitigated. (If the cause of action was determined to exist, it is said to be
merged into the judgment; if it was determined not to exist any subsequent action is barred.) Issue estoppel
is an extension of the same rule of public policy, but it focuses not on claims or causes of actions, but on
issues. It precludes relitigation of issues that a court has decided in a prior suit. If the cause of action
involved in a subsequent proceeding is a separate and distinct one from that litigated in the earlier
proceeding, cause of action estoppel will not apply. However, within different causes of action there may be
common issues that have to be adjudicated. If an issue has been determined in prior litigation, issue estoppel
– even if the new litigation involves a different cause of action – will prevent relitigation of the issue already
decided”
[31] He cited Las Vegas Strip Ltd. v. Toronto (City), [1996] O.J. No. 3210 (Gen. Div.),
affirmed 32 O.R. (3d) 651 (C.A.), in which Sharpe J. (as he then was) noted that the respondents
were relying on:
…an often quoted passage from Henderson v. Henderson (1843), 3 Hare 100 at p. 115, 67 E.R. 313 at p.
319, per Wigram V.C.: ‘…where a given matter becomes the subject of litigation in, and of adjudication by,
a Court of competent jurisdiction the Court requires the parties to the litigation to bring forward their whole
case, and will not (except under special circumstances) permit the same parties to open the same subject of
litigation in respect of matter which might have been brought forward as part of the subject in contest, but
which was not brought forward, only because they have, from negligence, inadvertence, or even accident,
omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon
8
2003 CanLII 45839 (ON SC)

which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to
every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable
diligence, might have brought forward at the time.”
Also supported by Staff Builders International Inc. v. Cohen et al.; Cohen et al v. Staff Builders
International et. Al,. [1983] 38 C.P.C. (Ont. H.C.) at. pp.85 and 86.
[32] In the same case, Sharpe J. held that the fact that the applicant was relying upon a
different theory did not remove the new claim from the reach of the old:
The authorities establish that a litigant cannot establish a new and fresh cause of action by advancing a new
and fresh legal theory in support of a claim based upon essentially the same facts.
[33] Katana’s counsel submitted that his client meets the test of res judicata outlined in
Holmstead and Watson, supra, at 21-151:
The two actions must involve the same parties or their privies…; the claim now sought to be asserted must
have been within the prior courts jurisdiction…; the prior adjudication must have been on the merits…; and
the prior decision must have been a final judgment…
Abuse of Process
[34] He further submitted that to allow the claims against Katana to continue, would be to
allow an abuse of process. He cited Donmar Industries Ltd. v. Kremlin Canada Inc. 6 O.R. (3d)
501 at p. 506 where Hayley J. held it an abuse of process to allow parties “…to put forward
issues which were either raised in the first action or which were known to them and left unraised
at the time of the first action. To allow them to do so is to permit a duplication of proceedings
with the inherent danger of conflicting findings of fact on identical issues.”
[35] He also cited a decision of Ground J. in Reddy(Litigation Guardian of) v. Oshawa Flying
Club, (1992) 34 A.C.W.S. (3d) 503 at paragraph 26:
The court has an inherent jurisdiction to dismiss or stay any proceedings which it determines to be an abuse
of process. The doctrine of abuse of process is somewhat similar to the doctrine of res judicata in that it also
seeks to prevent a multiplicity of proceedings or the re-litigation of an issue determined in earlier
proceedings or which might have been raised in earlier proceedings but the party now raising the issue
before the court chose not to do so.
Hilltop’s Submissions
Res Judicata
[36] Counsel for Hilltop submitted counsel for Katana has not met the burden of proving res
judicata based on either (a) cause of action estoppel or (b) issue estoppel.
(a) Cause of action estoppel.
[37] He submitted all of the following criteria have not been met:
(a) In the earlier action, there must have been a final decision of a court of competent
jurisdiction;
(b) the parties to the subsequent action must have been parties to, or in privy with, the parties to
9
2003 CanLII 45839 (ON SC)

the earlier action;
(c) the cause of action in the earlier action must not have been separate and distinct from the
cause of action in the subsequent action; and
(d) the basis of the cause of action in the subsequent action either was argued in the earlier
action or could have been argued if the parties had exercised reasonable diligence.
Doering v. Grandview (Town) [1976] 2 S.C.R. 621 (S.C.C)
(b) Issue estoppel.
[38] He submitted all of the following criteria have not been met:
(a) the same question must have been decided;
(b) the judicial decision said to create the estoppel must have been final;
(c) the parties or their privies must have been the same as they were in the proceedings in which
the estoppel is raised.
Angle v. Minister of National Revenue 47 D.L.R. (3d) 544 (S.C.C. May 27, 1974);
Machin et al. v. Tomlinson (2000) 51 O.R. (3d) 566, [2000] O.J. No. 4338 (Ont. C.A.
November 20, 2000) at paragraph 2.
[39] In any event, he submitted this Court should refuse to grant the order sought, as to grant
it would be unfair and unjust to do so. See Minott v. O'Shanter Development Co. [1999] O.J. No.
5, 42 O.R. (3d) 321 (Ont. C.A. January 7, 1999) at pages 340 to 343.
[40] He cited Danyluk v Ainsworth Technologies Inc. [2001] 2 S.C.R. 460, where Binnie J. for
the Supreme Court of Canada said that the rules governing issue estoppel should not be
mechanically applied. Their underlying purpose is to balance the public interest in the finality of
litigation with the public interest in ensuring that justice is done on the facts of the particular
case. The first step is to determine whether the moving party has established the pre-conditions
to the operation of issue estoppel. If successful, the Court must still determine whether, as a
matter of discretion, issue estoppel should be applied.
[41] Counsel for Hilltop submitted that in the circumstances here, where findings have already
been made that Katana’s conduct was planned and deliberate and intended to defeat Hilltop’s
legal rights, where Hilltop has obtained a judgment of approximately $5.5 million, but has
collected only $24,000, the Court’s discretion should be exercised in Hilltop’s favour.
Test on a Rule 21 Motion
[42] Counsel for Hilltop submitted Katana has not met the test under Rule 21. Before striking
out a claim, this Court must be satisfied that it is “plain, obvious and beyond doubt” that a claim
cannot succeed. See Air India Flight 182 Disaster Claimants v. Air India (1987) 62 O.R. (2d)
130; MacDonald v. Ontario Hydro (1994), 19 O.R. (3d) 529
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2003 CanLII 45839 (ON SC)

CONCLUSION
Res Judicata
[43] I am of the view that counsel for Katana has not demonstrated that all of the preconditions
for the operation of issue estoppel or cause of action estoppel have been met.
[44] Although some of the parties are the same in the Present Action as they were in the First
and Second Actions, others are different. The nature of the allegations in the Present Action are
different from those in the First and Second Actions. The same issue or same question element of
the issue estoppel test has not been met. In the Present Action, it is alleged for the first time that
the Mayfield Property, although registered in the name of 806, is controlled and beneficially
owned by Katana. The allegations in the Present Action pertain to the Mayfield Property. In the
First Action they pertained to a different property, the Wilson Property. In the Second Action,
they pertained to Seaburn.
[45] I do not accept counsel for Katana’s submission that in all of the circumstances here
Hilltop was required to make the allegations now being made in the Present Action in the First or
Second Actions. Hilltop has not set up the same issues in a different guise.
[46] Even if I had determined that the pre-conditions to the operation of estoppel had been
met, I would have exercised my discretion in the interests of justice in all of the circumstances
here and refused to dismiss or stay the action against Katana at this stage.
Abuse of Process
[47] Nor am I prepared to bar the Present Action against Katana on the ground it is an abuse
of process. In my view, the Present Action is not an abuse of process. To allow it to continue
against Katana is consistent with the objectives of public policy in all of the circumstances here.
Indeed the law affords a host of remedies, both pre- and post-judgment, at times sequentially, to
assist aggrieved parties to obtain disclosure of relevant information and to ultimately provide
them with meaningful enforcement mechanisms. Otherwise, our court processes could be abused
to an extent that could render them meaningless to those intent on avoiding their effects.
[48] Katana’s motion is dismissed. Written costs submissions may be made on or before
January 5, 2004.
Released:
M.A. SANDERSON J.
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2003 CanLII 45839 (ON SC)

TAB 4

RULE 57 COSTS OF PROCEEDINGS
GENERAL PRINCIPLES
Factors in Discretion
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to
award costs, the court may consider, in addition to the result in the proceeding and any
offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer
for the party entitled to the costs as well as the rates charged and the hours spent by that
lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in
relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the
duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a
party,
(i) commenced separate proceedings for claims that should have been made in one
proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same
interest or defended by a different lawyer; and
1

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1);
O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.
Costs Against Successful Party
(2) The fact that a party is successful in a proceeding or a step in a proceeding does not
prevent the court from awarding costs against the party in a proper case. R.R.O. 1990,
Reg. 194, r. 57.01 (2).
Fixing Costs: Tariffs
(3) When the court awards costs, it shall fix them in accordance with subrule (1) and the
Tariffs. O. Reg. 284/01, s. 15 (1).
Assessment in Exceptional Cases
(3.1) Despite subrule (3), in an exceptional case the court may refer costs for assessment
under Rule 58. O. Reg. 284/01, s. 15 (1).
Authority of Court
(4) Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under
section 131 of the Courts of Justice Act,
(a) to award or refuse costs in respect of a particular issue or part of a proceeding;
(b) to award a percentage of assessed costs or award assessed costs up to or from a
particular stage of a proceeding;
(c) to award all or part of the costs on a substantial indemnity basis;
(d) to award costs in an amount that represents full indemnity; or
(e) to award costs to a party acting in person. R.R.O. 1990, Reg. 194, r. 57.01 (4);
O. Reg. 284/01, s. 15 (2); O. Reg. 42/05, s. 4 (2); O. Reg. 8/07, s. 3.
Bill of Costs
(5) After a trial, the hearing of a motion that disposes of a proceeding or the hearing of
an application, a party who is awarded costs shall serve a bill of costs (Form 57A) on the
other parties and shall file it, with proof of service. O. Reg. 284/01, s. 15 (3).
Costs Outline
(6) Unless the parties have agreed on the costs that it would be appropriate to award for a
step in a proceeding, every party who intends to seek costs for that step shall give to
2

every other party involved in the same step, and bring to the hearing, a costs outline
(Form 57B) not exceeding three pages in length. O. Reg. 42/05, s. 4 (3).
Process for Fixing Costs
(7) The court shall devise and adopt the simplest, least expensive and most expeditious
process for fixing costs and, without limiting the generality of the foregoing, costs may
be fixed after receiving written submissions, without the attendance of the parties.
O. Reg. 42/05, s. 4 (3).
DIRECTIONS TO ASSESSMENT OFFICER
57.02 (1) Where costs are to be assessed, the court may give directions to the
assessment officer in respect of any matter referred to in rule 57.01. R.R.O. 1990, Reg.
194, r. 57.02 (1).
(2) The court shall record,
(a) any direction to the assessment officer;
(b) any direction that is requested by a party and refused; and
(c) any direction that is requested by a party and that the court declines to make but
leaves to the discretion of the assessment officer. R.R.O. 1990, Reg. 194, r. 57.02 (2).
COSTS OF A MOTION
Contested Motion
57.03 (1) On the hearing of a contested motion, unless the court is satisfied that a
different order would be more just, the court shall,
(a) fix the costs of the motion and order them to be paid within 30 days; or
(b) in an exceptional case, refer the costs of the motion for assessment under Rule 58 and
order them to be paid within 30 days after assessment. O. Reg. 284/01, s. 16.
(2) Where a party fails to pay the costs of a motion as required under subrule (1), the
court may dismiss or stay the party’s proceeding, strike out the party’s defence or make
such other order as is just. R.R.O. 1990, Reg. 194, r. 57.03 (2).
Motion Without Notice
(3) On a motion made without notice, there shall be no costs to any party, unless the
court orders otherwise. R.R.O. 1990, Reg. 194, r. 57.03 (3).
3

COSTS ON SETTLEMENT
57.04 Where a proceeding is settled on the basis that a party shall pay or recover costs
and the amount of costs is not included in or determined by the settlement, the costs may
be assessed under Rule 58 on the filing of a copy of the minutes of settlement in the
office of the assessment officer. R.R.O. 1990, Reg. 194, r. 57.04.
COSTS WHERE ACTION BROUGHT IN WRONG COURT
Recovery within Monetary Jurisdiction of Small Claims Court
57.05 (1) If a plaintiff recovers an amount within the monetary jurisdiction of the Small
Claims Court, the court may order that the plaintiff shall not recover any costs. O. Reg.
377/95, s. 4.
(2) Subrule (1) does not apply to an action transferred to the Superior Court of Justice
under section 107 of the Courts of Justice Act. R.R.O. 1990, Reg. 194, r. 57.05 (2);
O. Reg. 292/99, s. 2 (2).
Default Judgment within Monetary Jurisdiction of Small Claims Court
(3) If the plaintiff obtains a default judgment that is within the monetary jurisdiction of
the Small Claims Court, costs shall be assessed in accordance with that court’s tariff.
O. Reg. 377/95, s. 4.
Proceeding Dismissed for Want of Jurisdiction
(4) Where a proceeding is dismissed for want of jurisdiction, the court may make an
order for the costs of the proceeding. R.R.O. 1990, Reg. 194, r. 57.05 (4).
COSTS OF LITIGATION GUARDIAN
57.06 (1) The court may order a successful party to pay the costs of the litigation
guardian of a party under disability who is a defendant or respondent, but may further
order that the successful party pay those costs only to the extent that the successful party
is able to recover them from the party liable for the successful party’s costs. R.R.O. 1990,
Reg. 194, r. 57.06 (1).
(2) A litigation guardian who has been ordered to pay costs is entitled to recover them
from the person under disability for whom he or she has acted, unless the court orders
otherwise. R.R.O. 1990, Reg. 194, r. 57.06 (2).
LIABILITY OF LAWYER FOR COSTS
4

57.07 (1) Where a lawyer for a party has caused costs to be incurred without reasonable
cause or to be wasted by undue delay, negligence or other default, the court may make an
order,
(a) disallowing costs between the lawyer and client or directing the lawyer to repay to the
client money paid on account of costs;
(b) directing the lawyer to reimburse the client for any costs that the client has been
ordered to pay to any other party; and
(c) requiring the lawyer personally to pay the costs of any party. O. Reg. 575/07, s. 26.
(2) An order under subrule (1) may be made by the court on its own initiative or on the
motion of any party to the proceeding, but no such order shall be made unless the lawyer
is given a reasonable opportunity to make representations to the court. R.R.O. 1990, Reg.
194, r. 57.07 (2); O. Reg. 575/07, s. 1.
(3) The court may direct that notice of an order against a lawyer under subrule (1) be
given to the client in the manner specified in the order. R.R.O. 1990, Reg. 194,
r. 57.07 (3); O. Reg. 575/07, s. 1.
5

TAB 5

British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371,
2003 SCC 71
Her Majesty The Queen in Right of the Province of British Columbia,
as represented by the Minister of Forests Appellant
v.
Chief Dan Wilson, in his personal capacity and as representative
of the Okanagan Indian Band, and all other persons engaged
in the cutting, damaging or destroying of Crown Timber at
Timber Sale Licence A57614 Respondents
and
Attorney General of Canada, Attorney General of Ontario,
Attorney General of Quebec, Attorney General of New Brunswick,
Attorney General of British Columbia, Attorney General of Alberta, the
Songhees Indian Band, the T’Sou-ke First Nation, the Nanoose First Nation
and the Beecher Bay Indian Band (collectively the “Te’mexw Nations”), and
Chief Roger William, on his own behalf and on behalf of all
other members of the Xeni Gwet’in First Nations government
and on behalf of all other members of the Tsilhqot’in Nation Interveners
and between
Her Majesty The Queen in Right of the Province of British Columbia,
as represented by the Minister of Forests Appellant
v.
Chief Ronnie Jules, in his personal capacity and as representative
of the Adams Lake Indian Band, Chief Stuart Lee, in his personal capacity
and as representative of the Spallumcheen Indian Band, Chief Arthur
Manuel, in his personal capacity and as representative of the Neskonlith
2003 SCC 71 (CanLII)

- 2 -
Indian Band, and David Anthony Nordquist, in his personal capacity
and as representative of the Adams Lake Indian Band, the Spallumcheen
Indian Band and the Neskonlith Indian Band, and all other persons
engaged in the cutting, damaging or destroying of Crown Timber at
Timber Sale Licence A38029, Block 2 Respondents
and
Attorney General of Canada, Attorney General of Ontario,
Attorney General of Quebec, Attorney General of New Brunswick,
Attorney General of British Columbia, Attorney General of Alberta, the
Songhees Indian Band, the T’Sou-ke First Nation, the Nanoose First Nation
and the Beecher Bay Indian Band (collectively the “Te’mexw Nations”), and
Chief Roger William, on his own behalf and on behalf of all other
members of the Xeni Gwet’in First Nations government and on behalf
of all other members of the Tsilhqot’in Nation Interveners
Indexed as: British Columbia (Minister of Forests) v. Okanagan Indian Band
Neutral citation: 2003 SCC 71.
File Nos.: 28988, 28981.
2003: June 9; 2003: December 12.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour,
LeBel and Deschamps JJ.
on appeal from the court of appeal for british columbia
Costs — Interim costs — Principles governing exercise of court’s
discretionary power to grant interim costs — Minister of Forests serving Indian Bands
2003 SCC 71 (CanLII)

V. Issues
- 20 -
(e) If counsel are unable to agree on such procedures, the matter shall
be taken back to the Chambers judge, who shall make directions
in accordance with the spirit of these Reasons.
18 This case raises two issues: first, the nature of the court’s jurisdiction in
British Columbia to grant costs on an interim basis and the principles that govern its
exercise; and second, appellate review of the trial court’s discretion as to costs. The
issue of a constitutional right to funding does not arise, as it was not relied on by the
respondents in this appeal.
VI. Analysis
A. The Court’s Discretionary Power to Grant Interim Costs
(1) Traditional Costs Principles — Indemnifying the Successful Party
19 The jurisdiction of courts to order costs of a proceeding is a venerable one.
The English common law courts did not have inherent jurisdiction over costs, but
beginning in the late 13th century they were given the power by statute to order costs
in favour of a successful party. Courts of equity had an entirely discretionary
jurisdiction to order costs according to the dictates of conscience (see M. M. Orkin,
The Law of Costs (2nd ed. (loose-leaf)), at p. 1-1). In the modern Canadian legal
system, this equitable and discretionary power survives, and is recognized by the
various provincial statutes and rules of civil procedure which make costs a matter for
the court’s discretion.
2003 SCC 71 (CanLII)

- 21 -
20 In the usual case, costs are awarded to the prevailing party after judgment
has been given. The standard characteristics of costs awards were summarized by the
Divisional Court of the Ontario High Court of Justice in Re Regional Municipality of
Hamilton-Wentworth and Hamilton-Wentworth Save the Valley Committee, Inc.
(1985), 51 O.R. (2d) 23, at p. 32, as follows:
(1) They are an award to be made in favour of a successful or deserving
litigant, payable by the loser.
(2) Of necessity, the award must await the conclusion of the proceeding,
as success or entitlement cannot be determined before that time.
(3) They are payable by way of indemnity for allowable expenses and
services incurred relevant to the case or proceeding.
(4) They are not payable for the purpose of assuring participation in the
proceedings. [Emphasis in original.]
21 The characteristics listed by the court reflect the traditional purpose of an
award of costs: to indemnify the successful party in respect of the expenses sustained
either defending a claim that in the end proved unfounded (if the successful party was
the defendant), or in pursuing a valid legal right (if the plaintiff prevailed). Costs
awards were described in Ryan v. McGregor (1925), 58 O.L.R. 213 (App. Div.), at
p. 216, as being “in the nature of damages awarded to the successful litigant against
the unsuccessful, and by way of compensation for the expense to which he has been
put by the suit improperly brought”.
(2) Costs as an Instrument of Policy
2003 SCC 71 (CanLII)

- 22 -
22 These background principles continue to govern the law of costs in cases
where there are no special factors that would warrant a departure from them. The
power to order costs is discretionary, but it is a discretion that must be exercised
judicially, and accordingly the ordinary rules of costs should be followed unless the
circumstances justify a different approach. For some time, however, courts have
recognized that indemnity to the successful party is not the sole purpose, and in some
cases not even the primary purpose, of a costs award. Orkin, supra, at p. 2-24.2, has
remarked that:
The principle of indemnification, while paramount, is not the only
consideration when the court is called on to make an order of costs;
indeed, the principle has been called “outdated” since other functions may
be served by a costs order, for example to encourage settlement, to prevent
frivolous or vexations [sic] litigation and to discourage unnecessary steps.
23 The indemnification principle was referred to as “outdated” in Fellowes,
McNeil v. Kansa General International Insurance Co. (1997), 37 O.R. (3d) 464
(Gen. Div.), at p. 475. In this case the successful party was a law firm, one of whose
partners had acted on its behalf. Traditionally, courts applying the principle of
indemnification would allow an unrepresented litigant to tax disbursements only and
not counsel fees, because the litigant could not be indemnified for counsel fees it had
not paid. Macdonald J. held that the principle of indemnity remained a paramount
consideration in costs matters generally, but was “outdated” in its application to a case
of this nature. The court should also use costs awards so as to encourage settlement,
to deter frivolous actions and defences, and to discourage unnecessary steps in the
litigation. These purposes could be served by ordering costs in favour of a litigant
who might not be entitled to them on the view that costs should be awarded purely for
indemnification of the successful party.
2003 SCC 71 (CanLII)

- 23 -
24 Similarly, in Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201, the
British Columbia Court of Appeal stated at para. 28 that “the view that costs are
awarded solely to indemnify the successful litigant for legal fees and disbursements
incurred is now outdated”. The court held that self-represented lay litigants should be
allowed to tax legal fees, overruling its earlier decision in Kendall v. Hunt (No. 2)
(1979), 16 B.C.L.R. 295. This change in the common law was described by the court
as an incremental one “when viewed in the larger context of the trend towards
awarding costs to encourage or deter certain types of conduct, and not merely to
indemnify the successful litigant” (para. 44).
25 As the Fellowes and Skidmore cases illustrate, modern costs rules
accomplish various purposes in addition to the traditional objective of indemnification.
An order as to costs may be designed to penalize a party who has refused a reasonable
settlement offer; this policy has been codified in the rules of court of many provinces
(see, e.g., Supreme Court of British Columbia Rules of Court, Rule 37(23) to 37(26);
Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 49.10; Manitoba
Queen’s Bench Rules, Man. Reg. 553/88, Rule 49.10). Costs can also be used to
sanction behaviour that increases the duration and expense of litigation, or is otherwise
unreasonable or vexatious. In short, it has become a routine matter for courts to
employ the power to order costs as a tool in the furtherance of the efficient and orderly
administration of justice.
26 Indeed, the traditional approach to costs can also be viewed as being
animated by the broad concern to ensure that the justice system works fairly and
efficiently. Because costs awards transfer some of the winner’s litigation expenses to
2003 SCC 71 (CanLII)

- 24 -
the loser rather than leaving each party’s expenses where they fall (as is done in
jurisdictions without costs rules), they act as a disincentive to those who might be
tempted to harass others with meritless claims. And because they offset to some
extent the outlays incurred by the winner, they make the legal system more accessible
to litigants who seek to vindicate a legally sound position. These effects of the
traditional rules can be connected to the court’s concern with overseeing its own
process and ensuring that litigation is conducted in an efficient and just manner. In
this sense it is a natural evolution in the law to recognize the related policy objectives
that are served by the modern approach to costs.
(3) Public Interest Litigation and Access to Justice
27 Another consideration relevant to the application of costs rules is access
to justice. This factor has increased in importance as litigation over matters of public
interest has become more common, especially since the advent of the Charter. In
special cases where individual litigants of limited means seek to enforce their
constitutional rights, courts often exercise their discretion on costs so as to avoid the
harshness that might result from adherence to the traditional principles. This helps to
ensure that ordinary citizens have access to the justice system when they seek to
resolve matters of consequence to the community as a whole.
28 Courts have referred to the importance of this objective on numerous
occasions. In Canadian Newspapers Co. v. Attorney-General of Canada (1986),
32 D.L.R. (4th) 292 (Ont. H.C.J.), Osler J. opined that “it is desirable that bona fide
challenge is not to be discouraged by the necessity for the applicant to bear the entire
burden” (pp. 305-6), while at the same time cautioning that “the Crown should not be
2003 SCC 71 (CanLII)

- 25 -
treated as an unlimited source of funds with the result that marginal applications would
be encouraged” (p. 306). In Re Lavigne and Ontario Public Service Employees Union
(No. 2) (1987), 60 O.R. (2d) 486 (H.C.J.), White J. held that “it is desirable that
Charter litigation not be beyond the reach of the citizen of ordinary means” (p. 526).
He awarded costs to the successful Charter applicant in spite of the fact that his
representation had been paid for by a third-party organization (so that he would not,
on the traditional approach, have been entitled to any indemnity). This case was
overturned on the merits on appeal (Lavigne v. O.P.S.E.U. (1989), 67 O.R. (2d) 536
(C.A.), aff’d [1991] 2 S.C.R. 211), but neither the Ontario Court of Appeal nor this
Court expressed any disapproval of White J.’s remarks on costs. Referring to both
Canadian Newspapers and Lavigne in Rogers v. Sudbury (Administrator of Ontario
Works) (2001), 57 O.R. (3d) 467 (S.C.J.), Epstein J. concluded at para. 19 that “costs
can be used as an instrument of policy and . . . making Charter litigation accessible to
ordinary citizens is recognized as a legitimate and important policy objective”.
29 In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1
S.C.R. 315, the applicants, who were Jehovah’s Witnesses, unsuccessfully argued that
their Charter rights had been violated when a blood transfusion was administered to
their baby daughter over their objections. Instead of granting costs in the cause, the
District Court judge directed the intervening Attorney General to pay the applicants’
costs. Whealy Dist. Ct. J. cited Osler J.’s statement in Canadian Newspapers, supra,
that bona fide challenges should not be deterred, and observed that the case before him
was an unusual one involving a matter of province-wide importance (see [1989] O.J.
No. 205 (QL) (Dist. Ct.)). His costs order, although unconventional, was upheld on
appeal by the Ontario Court of Appeal, and subsequently by this Court. At the Court
of Appeal, Tarnopolsky J.A. noted that this case, in which “the parents rose up against
2003 SCC 71 (CanLII)

- 26 -
state power because of their religious beliefs”, was one of national, even international
significance ((1992), 10 O.R. (3d) 321, at pp. 354-55). La Forest J. stated at para. 122
of this Court’s judgment that the costs award against the Attorney General was “highly
unusual” and something that should be permitted “only in very rare cases”, but that the
case “raised special and peculiar problems”. He allowed Whealy Dist. Ct. J.’s order
to stand.
30 The B. (R.) case illustrates that in highly exceptional cases involving
matters of public importance the individual litigant who loses on the merits may not
only be relieved of the harsh consequence of paying the other side’s costs, but may
actually have its own costs ordered to be paid by a successful intervenor or party. It
should be noted that Whealy Dist. Ct. J. applied Rule 57.01(2), a provision of
Ontario’s Rules of Civil Procedure that expressly authorized the court to award costs
against a successful litigant and specified that the importance of the issues was a factor
to be considered (see Rule 57.01(1)(d)). Although these principles are not spelled out
in the Supreme Court of British Columbia Rules of Court, in my view they are
generally relevant in guiding the exercise of a court’s discretion as to costs. They
form part of the background against which a British Columbia court exercises its
inherent equitable jurisdiction, confirmed by Rule 57(9), to depart from the usual rule
that costs follow the event.
(4) Interim Costs
31 Concerns about access to justice and the desirability of mitigating severe
inequality between litigants also feature prominently in the rare cases where interim
costs are awarded. An award of costs of this nature forestalls the danger that a
2003 SCC 71 (CanLII)

TAB 6

'Vla y. 9. 2012 I r 20Pli4
f,NTRIT:
M, JOANNE ST. LEWIS
-et-
DENIS RANCOURT
No. 1695 P B/14
REFERENCE: St. Lewis c. Rancourt.2012 ONCS 2519
NUMERO DE DOSSIER DU GREFFE : I I.51657
DATE t20r2lQ5l09
COUR SUPNRIDURf, DD JUSTICE
Demanderesse
D[ L'ONTARIO
D€ferrdeur
Mt Richard G. Deardon" pour la
dcmanderesse
Denis Rancourt, se reprCsentant lui-m€me
UNTVERSITE D'OTTAWA M'Peter K. Doody, pour I'Universild
Tiers non parrie A I'action
d'Ottawa
LE JUGE R, SMITH
MOTIFS Df, DNCISION
ENTENDUE : le 28 mars 2012
Il] Monsieur Derris Rancourt, anciennernenl professeur d I'Universit6 d'Ottaw4 est I'auteur
d'un blogue. La demanderesse, M'Joanne St. Lewis, a intentd une aclion pow libelle contre lui
en raison des diclarations qu'il a faites dans son blogue et dans lesquelles il a critiqud
l'Universitd d' Ottawa.
L2J MF St. Lcwis. dgalement professcure A l'Universiti d'Ottawa, a prepar6 un rapport dars
iequel elle a conclu que le traitement rdselv6 par I'UnivcrsitC d'Ottawa aux dhrdiants de
minoritds visibles ne constituait pas du racisme sy$tdmique, Dans le cadre de I'action pour libclle
intentde contre monsieru Rancourl, les honoraires d'avocats de M St. Lewis sont payds par
I'UniversitC d'Ottawa. Selon monsieur Rancourl, cette pratique constitue de la champartie.
13] Monsicur Rancourt cherche A obtcnir l'autodsation d'interjeter appel dr I'encontre de la
ddcision du juge Beaudoin, en sa qualit6 de jugc responsable de la gestion de l'instance, lorsque
ce dernier lui a interdit de prdsenter une motion (la motion sur la publicitC des instances
judiciaires) visant i permettle aux membres du gand public d'assister aux contre-interrogatoires
sur affidavits dCposis dans le cadre de sa motion liie i la champartie.

May.
9. 2012 l:2lPl\4 No. 1695 P. 9/14
page2
L4l Dans les motifs qu'il a rendus oralement, le juge Beaudoin a refusd de permethe i
monsieur Rancourt de pr6senter une motion visant A permettre aux membres du grand public
d'assister aux contre-interrogatoires sur affidavits parce que, selon lui, le principe de la publicitd
des instances judiciaires ne s'appliquait pas [TRADUCTION] . Le jugc Beaudoin a igalement
adoptC les motifs du protonotaire Macleod, qui en 6tait arrivd d la mOme conclusion.
l5l Dans l'inscription Ccrite du 8 fdwier 2012, Le juge Beaudoin a conclu, au paragraphe 3,
que le principe de publicitd des instances judiciaires ne s'appliquait pas aux irrten'ogatoircs
prialables hors la priscnce du hibunal, et il a soulignd que la question avait €t€ pr6alablemerrt
tranchCe dans I'ordonnance rcndue le 6 octobrc 201I par le protonotaire Macleod.
i6]
Monsieur Rancourt fait valoir que le juge Beaudoin a commis les ereurs qui suivent.
(a) Il s'est trompi et a cru, i tort, que la motion sur la publicitd des instances judiciaires
devait s'appliqucr aux intcrrogatoires prialables ainsi qu'aux contre-intenogatoires
sur affidavits. Dans sa motion, monsicur Rancourt a seulement cherchi i permettle
aux membres du grand public d'assister aux contre-interogatoires sur affrdavits.
(b) Il ne possCdait pas la comp6tcnce nCcessaire lors de la confirence relative i la cause
pour interdire A monsieur Rancourl de prCsentor sa motion sur la publicit€ des
instances judiciaires, car il s'agissait d'une questron de fond et non d'une question
de proc€dure.
(c) Monsieur Rancourt a ainsi subi un ddrri de justice naturelle et s'cst w privC de son
droit i I'6quitd procddurale parce qu'il rl'a pas pu addquatement pr6sentcr son
argumentation au soutien de sa motion sur Ia publicit€ des instances judiciaires
t7l }vf St. Lewis et I'Universitd font valoil que monsieur Rancourt n'a pas satisfait aux
critdrcs pour obtenir I'autorisation d'interjeter appel. Ils font €galement valoir qu'il n'y a pas lieu
de douter de la justesse de la dCcision du juge Beaudoin parce que la m€me question avait 6td
prdalablement tranchde par le protonotaire Macleod, et que, par cons€quent, les principes de la
chosejugCe (res judlcota), de I'abus de proc€dure et de la contestation indireck s'appliquent.
t8] M" St, Lervis fait dgalement valoir' que le principe de la chose jugie constitue une rigle
de preuve et non une question de fond, et que, pal consCquerrl, le juge Beaudoin avait la
compitence pour appliquer la doctrine de la chose jugde dans le contexte d'une confd.r'ence
relativc d la cause. Mo St. Lewis fait dgalemcnt valoir que le juge responsable de la gestion de
I'instance possdde la compdtence inhdrente ndcessairc pour dCcidcr de Ia marche d suiwe dans Ie
contexte de l'action, y compris emp€cher monsieur Rarrcourt de prdsenter une motion sur une
question qui avait dijn €td jugde, 6tant doruri qu'aucun appel n'avait €t€ interjetd A I'encontre de
la dCcision du protonotaire Maclcod.
t9] M' St. Lewis fait 6galcmcnt valoir quc de permettle i rnonsieur Rancourt de prdsenter
une motion et de faire valoir que les membres du gland public ont le droit d'assister aux
contre-intenogatoires constituerait une conle$tation indirecte inadmissible de I'ordonnancc
rendue le 6 octobre 2011 par le protonotaire Macleod, qui s'€tait pr€alablement prononcC
commc suit:

lv1ay, 9, 2012 l:2lPM l\|o. 1695 P 10/ 14
ITRADUCTiON]
page
3
7, Sculs les tdmoins, les parties, leuts avocats et le stCnographe judiciaire peuvent
Otte prCsents lors des contle-inteuogatoires, sauf avec le consentement mutuel
des parties.
ii0l M'St. Lcwis fait enfrn valoir que le juge Beaudoin a correctement appliqud la doctrine de
la chose jugde, de I'abus de procddure et de la contestation indirecte, et que, par consCquent, il
n'y a eu aucun manquement i I'iquiti procidurale et aucun d6ni de justice naturelle envers
rnonsieul Rancoun,
Analyse
U l] Les critCres pour. obtenil I'autorisation d'interjeter appel sont inonc€s aux
alindas
62.02(\a) et b) :
(a) un &utle juge ou un auu'e tlibunal de l'Ontado ou d'ailleurs a rendu une ddcisron
incompatible sur la question qui fait l'objct de I'appel projeti, et le juge qui entcnd
la motion estime qu'il est souhaitable d'accorder I'autorisation;
(b) lc juge qui errtend la motion a des motifs de mefire err doure le bien-fondd de
I'ordonnance en cause et I'appel projetd souldve des questions d'une importance
telle qu'il estime souhaitable d'accorder l'autorisation. R.R.O. 1990, Rdgl. 194, par'.
62.02 (4).
(a\ D6cision incompatible et souhoitabilrtd d'accorder l'autorisatlon
Uzl Monsieur Rancourt invoque la d€cision de I'affaire Lower v. Stasluk 2006 BCSC 864 au
pat'agraphe 24 au soutien de sa prdtention eu 6gard i une dCcision incompatible rendue par un
autre juge, Dans I'affaire Lower, pricit€e, le juge d'office lors de la confirence lelative d la
cause a, dans le cadre d'une instance poltant sur lc droit dc la famillc, tranchC une qucstion de
fond contestie. La ddcision du juge, rendue en I'absence de preuve admissible sur la question de
fond - d savoir si I'urre des parties avait d€montrd I'existence d'un changement important dans la
situation - a dtd infirrnde en appel.
[13] L'affaire Lower, une instance portant sur le dloit de la fbmille, avait €td instluite selon les
British Colurnbia Family Rules [rdgles du droit de la famille de la Colombie-Britannique]. Le but
de la conf€rence relative i la cause mcnde dans lc cadre d'une instancc poltant sur le droit de la
famille est ITRADUCTIONJ < de promouvoir, dans le contexte d'une audience informelle, le
rdglcment des questions au moyen de Ia discussion et du consentement D. Une confdrence de
gestion de I'instance dans le contexte d'une action civile ne partage pas le but premier poursuivi
par une conference relative il la cause menCc dans lc cadre d'une instance portant zur Ie droit de
la farnille, A savoir de tenter de rdgler les questions au ddbut du litige afin d'6viter d'autres
procCdures, La tenue d'une conf€rence relative i la cause dans le cadre d'une instance civile vise
i appotter au le litige en cbuls une gestion d'instance qui soit la plus juste et la moins coffteuse

Mlay,
9 2012 l:2lPl\4 No, 1695 P 11/14
page
4
possible, et ce, en temps utile. Ainsi, je ne suis pas convaincu que monsieur Rancourt a d€montr€
qu'un autre juge a rendu une dCcisiorr incornpatible,
tl4] Je ne suis Cgalement pas convaincu qu'il est souhaitable d'accotder I'autorisation parce
qu'il n'y a pas en I'espdce conflit de principes; il s'agit plut6t, dans le cadle d'une affaire civile,
d'une ddcision renduc par le juge responsable de la gestion de I'instance. En interdisant A
monsieur Rancourt de prdsenter de nouveau son argumentation au soutien d'une motion suf, une
questlon qui avait ddjA dte tanchde en I'esp0ce par le protonotairc Macleod, le juge Beaudoin a
simplement tentd de g€rer et de faire Bvancer le litige d'une fagon qui soit la plus juste ct la
moins co0teuse possible en temps utile.
(b) MotrJs de metfi'e en dotfie Ie bien-fond| et questlons d'une inporlance telle qu'il est
souhai ta b I e d' accor der I' autoris ation
tl5l Pour les motifs qui suivent, je ne suis pas convaincu qu'il existe quelconqtre motif de
mettre en doute le bien-fondi de Ia dicision par laquelle le juge Beaudoin a inter'dit a
monsicru'Rancourt dc prdsenter une motion visant i permettre aux membres du grand public
d' as sister aux contte-interro gato ir'es sur affi davits.
(a) Bicn que cette m€mc question, entre les m€mes parlies, a d6ji dtd tranchde en
l'espCce, monsieur Rancourt n'a pas intcrjctC appcl il I'enconlrc de la dicision du
protonotaire Macl.eod,
(b) Le juge responsablc de la gcstion dc l'instance peut" dans le cadre d'une aflhrre
civile, rendre des ddcisions procCdulales, y compris d'interdire i une partie de
prdsenter une motion visant d trancher une question qui l'a ddjn Ct6. La doctline de
I'abus de proc€dule et celle de Ia contestation indirecte sur une ordonnance
ddfinitive en vigueur sont des principes de droit que peut appliquer le juge
responsablc de la gcstion de I'instance afin de s'assurer que Ie litige procdde d'urre
fagon qui soit la plus justc ct la moins co0teuse possible, et ce, en temps utile. La
doctrine de I'abus de procddure est une doctrine qui sc vcut flexible, et ce, afin de
permeth'e au tribunal d'emp€cher que ses proc€dures soient utilisCes abusivcment,
d'une manidre qui serait manifestement injuste envers une partie, ou qui aru'ait pour
effct de disuCditer I'administration de la justice.
(c) Au paragraphe 1954 du texte, The Law of Evidence [e droit de la preuve], 3' dd,
par Bryant, Lcderman et Fucrst, I'auteur ddclare que la rdgle de la chose jug€e
(res ludrcata) est une rOgle de preuve et non une rfgle de droit substantiel.
[TRADUCTION] Bien que I'on puisse tr l'occasion se r€ftrer au
principe de Ia chose jug€e (res judicata) conune une rdgle de droit
substantiel, il serait plus juste de dile que ce principe constitue une
rdgle de prcuve. Essenticllement, la paftie contre laquelle la poursuite
ou la question a 6td tranchde se voitprdcluse de prdsenter toute preuve
visant i infirmEr ce rCsultat,

Ivlay. 9.2012 l:22Ph4
(d)
(e)
page 5
No. 1695 P 12/14
Monsieur Rancourt n'a pas Ct6 privd de son droit i I'dquitd proc€durale : il avait
prialablement tent6 d'obtenir du protonotaire Macleod l'autorisation nicessaire
pour permcttre aux membrcs du gand public d'assister aux contrc-intcnogatoircs
sw affidavits Sa demande avait toutefois CtC refus€e, Par consdquent, il n'a pas
subi un ddni de justice nafurelle ,
(1) Dans I'affaire criminelle R. v. Gordon, [998] O.J. No. 4043, Bu
paragaphe 108, Ie juge Hill a conclu que le contre-interrogatoire sur
aflidavits mend devant un auditeur n'Ctait pas assujetti au principe de la
publicitd de s instances judiciaires
(ii) Dans I'affaire Gordon, prdcitCc, Ie jugc Hill a adopt6 le misonnemcnt dc la
Cour supr€me du Canada darrs I'arr0t Canadion Broadcasting Corporalion
v. Attomey generalfor New Brunswrck, (1997), 110 C.C,C' (3d) 193
(c,s.c.).
Au paragraphe 108, le juge Hill s'est prononc€ ainsi ;
ITRADUCTIONI ,, il est possible que le principe de la
publicitC des inslances judiciaires pt'otegd en verTu de
l'alinda 2D) de ls Charte ne s'applique pas i tous les lieux of la
justice pdnale est rendue; bien que ce principe ait pu depuis
longue datc s'appliquer directement aux tribunaux, d'autres
considdrations peuvcnt s'appliquer d des lieux qui n'ont pas,
par lc pass€, Ctd considdrds comme des forums publics. Il serait
inutile et impraticable d'imposer au bureau de I'auditeur un
imp€rarif de publicitd des instances judic.iaires dans le contexte
du contre-interrogatoire sul attidavits deposes dans des
instances cdminelles. Le procis'verbal traite devant l'auditeul,
c'cst-il-dirc l'affidavit et la transcription du
contre-interrogatoire, est ddposd auprds du uibunal, et cclui-ci
sert A I'argurnentation - en oudience publique - de la rnotion
plCalable au procds. [je souligne]
(iii) Un nombre d'autres d€cisions faisant autoritd ont Cgalement conclu que le
bureau de I'auditeul n'est pas un lieu public d'audience, notamment
l'affaile R. v. Gordoa prCcitde, au paraglaphc 104 :
ITRADUCTION] Plusieurs dCcisions faisant autoritC ont
exprimd I'avis que le bueau de I'auditeur n'est pas un lieu
public d'audience, et que I'auditeur peut selon les
circonstances particuli€res de chaque litige ou selon ce que
I'auditeur croit €tre mieux apte A assurer les fins de la justice -
y laisser entet ou en exclure cerlaines petsoffIes.
Smrth et al. v.ll'alnut Dairy Ltd, et ql., [1945] O.W,N. 801
(le protonotaire Conant) au paragraphe 802 (affirmde
[945] O.W.N. 803 (Haute Cour) au paragraphe 803

lvlay.
9, 2012 1r22Pl\4 No. 1695 P t3/14
page
6
par te juge Hope); Baywood Paper Products Ltd.
v Poymaster Cheque-Wrirers (Canada) Ltd
(1986), 57 O R. Qd)229
(Cour de district)
aux paragraphes 233 et239
par lejuge
dc la Cour de district Borins, (tel itait alors son titre);
Abulnar v. Varity Corp (1989), 70 O.R. (2d) 168(Hautc
Cour)
au paragraphe 170 par le juge Hury,
(iv) J'adopte les corrclusions tir€es dans I'affaire -[ v Gordon, prdcitde, d savoir
que le bureau de I'auditeur n'est pes un lieu public d'audience et que
permettre aux rnembres du gland public d'assister aux contre-interrogatoires
sru' affidavits menis au bureau dc I'auditeur ou flu cabinet d'un avocat dans
lc cadre d'un litigc civil entrc des partics privCes cst inutile et impraticablc.
U 6] Pour les motifs qui pr6cBdent, je conclus qu'il n'y a pas lieu de douter du bien-fondC de Ia
dicision du juge Beaudoin ou de cclle du protonotaire Maclcod. Comptc tcnu de la conclusion
que j'ai tirie sur Ia premidre partie du critAre de I'alinCa 62,02(4)b), il n'y a pas lieu de traiter de
la qucstion de savoir si les questions soulev€es sorrt d'uue importance telle qu'il serait
souhaitable d' accorder [' autorisation d' interj etel appel.
D€cision
tl7] Par consiquent, la motion prCsentCe par monsieur Rancourt cherchant A obtenir
I'autorisation d'interjeter appel A I'encontre de la d€cision du juge Beaudoin est rejet€e,
tl8] La demanderessc et I'UniversitC d'Ottawa pourront mc pr€sentcr de brlves obscrvations
sur les dipens dans les dix (I0)jours suivants la publication des prdsents motifs de ddcision
Monsieur Rancourl disposera A son tour de dix (10) jours pour y rCpondre, et la demanderesse et
['Urriversitd disposeront enfin de sept (7) jours pour prdsenter leurs ripliques.
Diffusds r le 9 mai 2012

May 9 2012 1:22P1\4
Diffusds : le 9 mai 2012
No. 1 695 P. 14/14
nEfnnfNCE : Sr Lewis c Rancoutr,z}Lz ONCS 2519
NUMfRO DE DOSSIER DU GREI'FE I I I.51657
DATE t 2012105109
ENTRE :
COUR SUPNRIDURI DD JUSTICf,
M'JOANNE ST, LEWIS
-et-
DENIS RANCOURT
DE L'ONTARIO
MOTIFS DE DfCISION
Demanderesse
DCfcndeur
Le juge R. Smith

jav. 9 2012 l:19PM Iro. 1695 P 2/14
BETWf,ENI
OANNE ST. LEWIS
'.and-
DENIS RANCOURT
CITATION: St. Lewis v. Rancourt.2012 ONSC 251!
COURT FILE NO.: I l-5 I6sT
DATE:2012105toq
ONTARIO
SUPDRIOR COURT OF JUSTICE
Plaintiff
Defendan:
Richard G. Deu'dcn. for the Plaintiff
Denis Rancourt, for the Deferrdant
JNIVERSITY OF OTTAWA Petel K, Doody, fbr the University of Ottawa
R. SMITH.I.
Non Party Participant
REASONS FOR DICISIOI\
IIEARD: March 28.2012
"ll
Derris 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"), fot libel for
staternents he made in his blog, criticizing the University of Unawa
12) St. Lewis is also a professor at the Universiiy of Ottawa who plepared a r€port which
concluded that therr was no systcmic racism in the Univcrsity of Ottawa's treatment of visible
mrnority students. Her legal fees for her libel action against Rancourt ale being paid by the
UniversiW of Onawa ("University"), which Rancourt alleges constifute$ champerty,
t3] Rancourl seeks leave to appeal the decision of Beaudoin J,, actrng as a case managemeni
judge, wherein he refused to allow hirn to bring a motion (the open court motion) to allow
members of the public to attcnd the cross-cxaminations on affidavits that were filed in his
champerty motion.
t4] In his oral reasons, Beaudoin J. refirsed to allow Rancourt to bring a motion to permit
members of the public to attend the cross-examinatron on affidavits because he held that tire

',cl
l.
'1
tvll
i:i9PM to. 1695 P 3/ 14
Page: 3
jden coufi pnncrplo was not appricabie to "cross-examinations or examinations for discovery
that ale out of court", He ftrther adooted the reasons of Mastcr Macleod who came to the same
oonclusion.
t5l In his written endorsement dated February 8,2012 at paragraph 3. Beaudoin J, held that
the open court principle does not apply to out of court examinations and also stated that the rssue
had been specifically decided in Master Macleod's order of October 6, 2011.
16l
Rancourt submits that Beaudoin J. encd in the following rcspects:
(a) he misdirected himself and mistakenly believed that the open court motron was t(l
apply to examinations for discovery as well as cross-examinations on the afftdavrw.
In his motion Rancourt only sought to allow mernbers of the public to attend the
cros$-examrnations on the affidavits:
(b) he lacked iu'isdiction at a case confcrcncc to refirsc to allow Rancourt to bring his
open court motion as it was a substantial issue and not a procedural matter: and
(c) Rancourt was denicd natural justice and was not accorded procedulal faimess as he
was prevenled t'orn fully arguing his open court motion.
[7] St, Lewis and the University submit that Rancourt has not met the test to obtain leave to
appeal. They ftrther submit that there is no reason to doubt thc correctness of BeaudoinJ.'s
decision because the same issue had alueady been decided by Master Maclcod. and as such tne
plinciples of res judicafa, abuse of process and collateral anack apply,
t8] St, Lewis fiurher submits that the prfirciple of res judicata is a rule of evidence and not a
substantive issue and as such, Beaudoin J. had jurisdiction to apply the doctine of res judicdta al
a case conference. She further argues that the case managernentjudge had inherent jwisdtcuon tu
decidc the procedure to be followed in the action, including preventing Rancourt from bringing a
motion on an issue that had alrcady bccn decided, where no appeal had been taken from
Master MacLeod's decision
t9] St, Lewis also argues that it would bc an impermissible collateral attack on
Master Macleod's order of October 6, 2011 to allow Rancourt to bring a motion and algue that
members of the public are entitled to be present at cross-examinatiorrs as he had previously rule d
as follows:
L No one but the witness, the puties, their legal counsel and the court reponer
may be prcscnt at thc cross-examinations unless otherwise agreed to by the
parlies
tl0l St. Lewis finally submits that Beaudoin J. conectly applied this doctrine of res judtcata,
abusc ofprocess and collateral attack and as such, there was no procedural unfairness and no
denial of narutal iustice to Mr, Rancourt.

,v1ay,
9. 2012 l:19PM No, 1695 P 4/14
.lnalvsis
Pagel
3
tl ll rhe test to obrain leave to appoal is set out in rule 62.02e)@)and (b)r
(a) there is a conflicting decision by another judge or corut rn Onano or
elsewhere on the matter involved in the proposed appeal and it is, in the
opinion of thc judge hearing the motion, dcsirable that leave to appcal be
ganred; or
(b) thcre appears to the judge hearing the motion good leason to doubt the
colrcctness of the order in question and the proposed appeal invotvcs
mattels of such importance that, in his oL her opinion, leave to appeal should
be granted. R.R.O. 1990, Reg. 194, r. 62.02 (4),
(a) Conflicting decision and desirable thar leqve be Sranted
(12) Rancourt relies on the decision of Lowet'v. ,stasirrt 2006 BCSC 8d4 at par.a. 24 as a
conflicting decision by anothel judge. In Lower, $uprd, the case conferencc judgc had decided a
contested substantive issue at a family case conference. The decision-was made withotrt
admissible evidence on a substantive issue namely, whether a matelial change of circumstances
had bcen proven by one parry. On appeal, the case conference judge's decision was overturned,
l'131 The Lower case was a family proceeding under the BrtnshCohtnbla Fanily.Ru/es. Thc
purpose of the case conference in a family proceeding is "an infbrmal hearing irrtended to
promotc rcsolution of issucs by discussion and agreement". A case managernent conference rn a
civil proceeding does not have the same primary pu'posc as a family caselconference, namely an
attempt t0 rs5elvs issues al an early stage to avoid finthet litigation. A civil case conference
attempts to manage the ongoing litigation in a just, cost effective and timely rnanncr. As a result,
I do not find that there is a conflicting decision of another judge thst has been identified by
Itancoun.
ll4l I am also not persuaded that it is desirable that leave to appeal be granted as there is no
conflicting principle but rather a dccision of a case management juOg. in a civil proceeding that
was artempting to manage the litigation to move it forward in thc most expeditious, just and least
expenslve manner possible by preventing Rancourt from rearguing a motion on rm issue that had
previously been decided in the same action by Master Macleoo,
(b) Reason to doubt corueetness and mattnr of such imporrance thar leqve should be
granrcd
U5] I do not find that there is any reason to doubt the conectngss 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 foliowirrg reasons:
(a) this sarne issue had already been decided by Master Macleod betwcen the same
pafiies, in the same action, and lvlr. Rancourt did not appeal
that decision;

f{lay.
9 2012 lr20PNl ilo.
1695 P t/ 14
Page:4
rb) a case management ludge in a civil proceedirrg may makc procedural rulings
inoiuding preventing 0 party fi'om bringing a motion to determine arr issue that has
ah'eady been decidcd. The application of the doctrines of abuse of process and
collatcral attack on an existing final order are legal principles that a case
mailtgement judge may apply to ensure the just, expeditious and least cxpensive
manner of proceeding. The doctrine of abuse of process is a flexible doctrine which
allows the court to prevent the rnisuse of its process in a way lhot would be
manifcstly unfair to a party or would in somc way bring the administlation of
justice into disrepute.
(c) In the text The Law of Evidcncc, Third Edition by Bryant, Lederman and Fuerst, at
pua 1954 the author states thar res judicata is a rule of cvidence and not a rule of
substontive law:
Although the principle of resTrdicata is sometimes rcferued to as a
rule of substantive law, the better view is that it is a rule of evidencc,
Essentially, the parly against whom thb suit ol issue was decided rs
estopped fi'om 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 publio to attond at the closs-examinations on
the affidavits bcfore Master Macleod and his requcst rvas denied. As a result, there
was also no denial of naturai iusticc.
(e) (i) In the criminal case in R. v. Gordon, [1998] O,J. No.4043 at para. 108,
Hill J. held that closs-examination on affidavits befole an examinor was not
subject to the open court principle.
(ii)
In Gordon, supra, Hill J., followed the reasoning of the Supreme Courr
decision ir Canadian Broadcasting Corporation v. Atlorney General for
New Brunswrck, (1997), I l0 C,C,C (3d) 193 (S C C.),
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
crirninal law is administered -- while it has long extended to
courts themselves other considemtions may apply to sites not
historically considercd to be public alcnas. IJnp.osing an open
coufi imperative on the examiner's envilonment. relating to
cross-examination on affidavits filed in criminal proceedings.
is unnccessary and unworkable. The record dealt wittr befble
thc examincr, the affidavit and thc closs-cxamination, are filed
with the court and used in the pre-trial motiorr argued in open
court. fEmphasis added]
(iii) A number of other authorities have also held that an examiner's office is not
a public court. lt, v. Gordon, suprd, at pp.l04:

May,
9. 2012 l:20P[1 No, 1695 P 6/ 14
Page: 5
Several authorities have iaken the position that an examiner's
office is not a public court and that an examineu may admit or
exclude persons according to the cilcwnstances of each case
and according to what the cxaminer considers best calculated
to secure the ends of justice: Smirh er al. v. IYalnut Dairy Ltd
et al.,09451 O,W,N. 801 (Master Conant) at E02 (aftirrned
[945] O.W.N. 803 (H.C.) at 803 per Hope J.); Baywood Paper
Products Ltd, v, Paymaster Cheque-Writers (Canada) Ltd.
(1985), 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 I.
(iv) I agree with the above statements made in R. v. Gordon, supto, that an
examiner's office is not a public court and that allowing any member of the
public to attend cross-examinations on affidavits Bt an exarniner's ol
solicitor's office in a civil dispute between private parties is unnecessary and
unworkable.
tl6] 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 thc mattcrs
raise d arc of such an impoilance that leave should be granted
Disposition
fl7]
Mr. Rancorut's motion for leave to appeal Beaudoin J.'s decision is therefore dismissed.
[18] The plaintiff and the University may rnake brief submissions on costs within
ten (10) days of the release of thcse reasons fol decision, Mr. Rancourl shall have ten (10) days
to respond and the plaintiff and thc University shall have seven (7) days to reply.
Relersed: May 9,2012

Released: Mav 9.2012
No.
]695 P 1/14
CITATION: St. Lewis v. Rancoun,2012 ONSC 2519
COURT FILE NO.r 11-51657
DATE: 2012105109
BETWEf,N:
ONTARIO
SUPNRIOR COURT OF JUSTICE
JOANNE ST. LEWS
-and-
DEMS RANCOUR1
Rf,ASONS FOR DNCISION
.llaintiff
Defendant
R. Smith J.

TAB 7

Examination No. 12-0477.2 Court File No. 11-51657
B E T W E E N:
SUPERIOR COURT OF JUSTICE
JOANNE ST. LEWIS
- and -
DENIS RANCOURT
**********************
(Ottawa-Carleton)
PLAINTIFF
DEFENDANT
CROSS-EXAMINATION OF ALLAN ROCK on an Affidavit dated February
21, 2012, pursuant to an appointment made on consent of the
parties, to be reported by Gillespie Reporting Services, on
April 18, 2012, commencing at the hour of 2:00 in the afternoon.
APPEARANCES:
***********************
MS. A. SEMENOVA for the Plaintiff
PETER DOODY, ESQ. for University of Ottawa
MR. DENIS RANCOURT for himself
This Cross-Examination was taken in stenotype by Pauline Munro,
O.C.R., at Ottawa, Ontario, having been duly sworn for the purpose.

NAME OF WITNESS: MR. ALLAN ROCK
(i)
INDEX
CROSS-EXAMINATION BY: MR. DENIS RANCOURT
NUMBER OF PAGES: 139
ADVISEMENTS, OBJECTIONS & UNDERTAKINGS
*O* . . . . . . 16, 36, 37, 41, 42, 47, 52, 53, 55, 56,
58, 94, 95, 100-106,114, 115, 116-121,
123-125, 128, 129, 132, 134-138
EXHIBITS
EXHIBIT NO. 1: E-mail dated April 20th, 2009. . . . . . . . 108
EXHIBIT NO. 2: E-mail from Allan Rock dated April 19th,
2009. . . . . . . . . . . . . . . . . . . . . . . . . . 116
EXHIBIT NO. A: National Post Article. . . . . . . . . . . . 120
EXHIBIT NO. B: E-mail from André Lalonde. . . . . . . . . . 121
EXHIBIT NO. C: Letter dated March 14, 2012 to Doctor Louis
Morisette. . . . . . . . . . . . . . . . . . . . . . . 128
EXHIBIT NO. D: E-mail from André Dumulon to Louise Pagé-
Valin and others, January 30, 2009. . . . . . . . . . . 139
DATE TRANSCRIPT ORDERED: APRIL 18, 2012
DATE TRANSCRIPT COMPLETED: APRIL 20, 2012

1 MR. ALLAN ROCK, SWORN:
2 CROSS-EXAMINATION BY MR. RANCOURT:
3 1 Q. I would like to start with the Notice for
4 Examination that I sent you, Mr. Rock. You did receive
5 it?
6 A. My counsel received it.
7 2 Q. In that Notice I asked for a number of
8 documents to be produced. Do you have it there in front
9 of you?
10 MR. DOODY: He does now.
11 MR. RANCOURT:
12 3 Q. I asked for all documents related to your
13 late spring 2012 meeting with Joanne St. Lewis and Bruce
14 Feldthusen?
15 MR. DOODY: I think it says actually April 2011
16 meeting in the document, doesn't it?
17 MR. RANCOURT: No, Mr. Doody.
18 MR. DOODY: I'm sorry, I've got the wrong one.
19 The witness has the wrong one.
20 MR. RANCOURT:
21 4 Q. So now we are going to the right document
22 which is the Notice of Examination and in that Notice of
23 Examination, Mr. Rock, I asked for a number of documents
24 to be produced.
25 In point one I asked for all documents related to
2

1 A. I've answered your question.
2 122 Q. Are there buildings that cost a million
3 dollars?
4 A. I've answered your question.
5 123 Q. Okay. Now getting back to the meeting
6 Professor St. Lewis explained the situation as she lived
7 it and saw it and then asked you if you would pay for
8 this; am I right so far?
9 A. Yes.
10 124 Q. Then did you immediately respond yes?
11 A. Yes.
12 125 Q. Would you call it an oral agreement?
13 A. I can tell you I said yes, then it is up to
14 you to decide what it is.
15 126 Q. Okay, and did you qualify it regarding the
16 amount that it might be or did you qualify your yes in any
17 way?
18 A. No.
19 127 Q. No way whatsoever?
20 A. No.
21 128 Q. So it was an absolute yes unqualified?
22 A. I think I have answered your question.
23 129 Q. Yes, I think I have answered yes.
24 MR. DOODY: No. He has answered the question you
25 asked him before. You then tried to characterize it in a
25

1 the defamation the dean of the faculty of law, common law
2 section, was very supportive. I believe that Stephane's
3 involvement was minimal, but he may also have spoken, and
4 if he did I just can't be sure what it was he said,
5 because I have already told you I wasn't even sure he was
6 there.
7 181 Q. But now you remember he was there?
8 A. Yes.
9 182 Q. When I asked you about had you consulted
10 anyone you said there was a discussion between the three
11 of you, so I am trying to know what that discussion was.
12 I mean you are consulting about this decision?
13 A. Yes.
14 183 Q. That was my question.
15 A. We are discussing the question on the table
16 and what I have told you is that the dean of the faculty
17 of law, common law section, was very supportive of the
18 proposition that the university should stand with our
19 professor and agreed to reimburse her for legal expenses.
20 184 Q. Did the dean, Mr. Feldthusen, have an opinion
21 about how much money this would involve?
22 A. If he did I don't remember him expressing it.
23 185 Q. You said you made the decision to fund. You
24 said yes. Was there no cap established in terms of
25 funding?
35

1 A. No.
2 186 Q. None?
3 A. No.
4 187 Q. And do you stand by that today?
5 A. I am answering your question. You asked me
6 if there was a cap and I told you no.
7 188 Q. And my next question is do you stand by that
8 today?
9 MR. DOODY: That is not relevant to this motion.
10 MR. RANCOURT:
11 189 Q. Do you stand by the decision to fund this law
12 suit without a cap?
13 MR. DOODY: Don't answer the question. It is not
14 relevant to the motion. *O*
15 MR. RANCOURT:
16 190 Q. Are you refusing to answer that question?
17 Mr. Rock, I am asking you?
18 A. I am taking my counsel's advice.
19 191 Q. Yes, but you have to decide. Are you
20 refusing to answer the questions?
21 A. I take my counsel's advice.
22 192 Q. So you are refusing then. Just say yes.
23 A. I will answer the questions as I see fit, Mr.
24 Rancourt.
25 193 Q. Okay. What is the annual operating budget of
36

1 that we do agree that this can be Exhibit D.
139
2 MR. DOODY: Exhibit D for identification the last
3 document that you put to the witness, the front page of
4 which is an e-mail from André Dumulon to Louise Pagé-Valin
5 and others, January 30th, 2009.
6 EXHIBIT NO. D: E-mail from André Dumulon to
7 Louise Pagé-Valin and others, January 30,
8 2009.
9 At 5:16 p.m. April 18, 2012 this Cross-Examination
10 adjourned.
11 I HEREBY CERTIFY THAT I have, to the best of
12 my skill and ability, accurately taken down in
13 stenotype and transcribed therefrom the
14 foregoing Examination.
15 ..............................................
16
17 PAULINE F. MUNRO, Official Court Reporter.

TAB 8

COURT OF APPEAL FOR ONTARIO
DATE: 20020910
DOCKET: C36074
O’CONNOR A.C.J.O., ABELLA and MacPHERSON JJ.A.
BETWEEN: )
) Janet E. Minor and
RONALD MCINTYRE by his
estate
) Sean Hanley
representative MAUREEN
MCINTYRE
)
)
for the appellant
Applicant/ ) Douglas Lennox
Respondent in appeal )
)
for the respondent
- and - ) Terrence J. O’Sullivan and
) Rochelle S. Fox
ATTORNEY GENERAL OF
ONTARIO
) for the intervener,
) The Advocates’ Society
Appellant )
) James Vigmond and
- and - ) Brian Cameron
) for the intervener,
THE ADVOCATES’ SOCIETY and ) The Ontario Trial Lawyers’
THE ONTARIO TRIAL
LAWYERS’
) Association
ASSOCIATION )
Interveners ) Heard: April 17, 2002
On appeal from the judgment of Justice Janet M. Wilson dated March 1,
2001, reported at (2001), 53 O.R. (3d) 137.
O’CONNOR A.C.J.O.:
[1] This appeal raises the important question of whether lawyers and their clients are
prohibited from entering into contingency fee agreements in relation to civil lawsuits in
Ontario. Contingency fee agreements may take a variety of forms, but the one element
common to all of them is that the client only becomes liable to pay the lawyer’s fees in
the event of success in the litigation.
[2] The respondent has commenced an action seeking damages against Imperial
Tobacco and Venturi Inc. (the “defendants”) for the wrongful death of Ronald McIntyre.
2002 CanLII 45046 (ON CA)

constitute an improper motive or officious intermeddling for purposes of the law of
champerty.
[73] I am comfortable that this conclusion is consistent with the reasonable evolution
of the common law in this area of the law. Some courts already have reached similar
conclusions.
[74] Further, the proposed change is not made in a vacuum. The effects of permitting
contingency fee agreements have been thoroughly studied in Ontario and the experiences
of the many jurisdictions that permit such agreements are well documented. As a result,
this court has the benefit of a very broad base of information in assessing the potential
advantages or disadvantages in developing the common law along the lines I propose.
Moreover, because the issues surrounding contingency fee agreements relate to the
administration of justice, a court is in as good a position as anyone to assess the
ramifications of an evolution of the law in this area.
[75] To be clear, I am not suggesting that contingency fee agreements can never be
champertous. Rather, I conclude only that contingency fee agreements should no longer
be considered per se champertous. The issue of whether a particular agreement is
champertous will depend on the application of the common law elements of champerty to
the circumstances of each case. A court confronted with an issue of champerty must look
at the conduct of the parties involved, together with the propriety of the motive of an
alleged champertor in order to determine if the requirements for champerty are present.
[76] When considering the propriety of the motive of a lawyer who enters into a
contingency fee agreement, a court will be concerned with the nature and the amount of
the fees to be paid to the lawyer in the event of success. One of the originating policies in
forming the common law of champerty was the protection of vulnerable litigants. A fee
agreement that so over-compensates a lawyer such that it is unreasonable or unfair to the
client is an agreement with an improper purpose – i.e., taking advantage of the client.
See Thai Trading, supra, at 788, 790. The applications judge in this case dealt with this
concern as follows, at 157:
The suggested compensation may or may not be fair and reasonable, depending upon the
outcome of the litigation in light of the difficulty of the case, as well as the time and
expenses incurred. Counsel should be well rewarded if the litigation is successful, for
assuming the risk and costs of the litigation. The compensation however should not be a
windfall resembling a lottery win.
[77] I agree with these comments.
(c)(e) Application of the law to this case
[78] The applications judge granted a declaration that the proposed fee agreement does
not violate the Champerty Act. The proposed agreement provides for payment to the
respondent’s lawyers of a fee in the amount of 30 percent of compensatory damages
recovered, 40 percent of punitive damages, costs recovered in the action and any
unrecovered disbursements. Depending on the amount recovered in the underlying
action, the fees to be paid to the lawyer could be enormous. The lawyers who drafted the
agreement provided an example of the potential fees which totalled over $9,000,000.
While the amount of the damages on which the example is based may or may not be
2002 CanLII 45046 (ON CA)

ealistic, the example does make the point that unacceptably large fees could become
payable under the agreement.
[79] The fee structure in the proposed agreement is related to the amount of money
that is recovered on behalf of the respondent. The fee structure has no relationship to the
amount of time spent by the lawyers, the quality of the services provided, the level of
expertise of the lawyers providing the services, the normal rates charged by the lawyers
who provide the services, or the stage of the litigation at which recovery is achieved.
Under the terms of this agreement, the respondent would be obliged to pay the lawyers
the same amount of fees if the litigation is settled early in the process as she would if the
same amount of money was recovered after a lengthy trial and appeal. In addition, the
agreement raises the prospect of double recovery for the lawyers – fees from the
respondent as well as costs recovered from the defendants in the action. There is no way
of telling at this point whether the fees that would be paid to the lawyers under this
proposed agreement would be reasonable and fair. When an agreement like this one is
structured so that the fees are based on a percentage of the recovery, the determination of
whether the fees are reasonable and fair will normally have to await the outcome of the
litigation.
[80] I have concluded in subsection (d) above that contingency fee agreements do not
per se contravene the Champerty Act. However, in my view, contingency fee agreements
that provide for the payment of fees that are unreasonable or unfair are agreements that
have an improper motive and come within the prohibition in the Act. Because it is
premature to address the issue of the reasonableness and fairness of the proposed
agreement, it is my respectful view that the applications judge should not have granted
the declaration sought by the respondent.
[81] I want to address three other matters that were touched on during the arguments
of counsel. The first relates to the criteria that should be used in assessing the
reasonableness and fairness of fees in a contingency fee agreement. Contingency fee
agreements have been expressly permitted by statute in many jurisdictions. Often, the
authorizing legislation has also provided for a regulatory regime that addresses the
manner in which the propriety of contingency fees may be determined. See for example,
the Class Proceedings Act, s. 33(1).
[82] Ontario, of course, does not have legislation specifically directed at regulating
non-class action contingency fee agreements. Until such legislation is passed, the regime
in the Solicitors Act for assessing lawyers’ accounts will apply. When assessing a
contingency fee arrangement, the courts should start by looking at the usual factors that
are considered in addressing the appropriateness of lawyer-client accounts. See Cohen v.
Kealey & Blaney (1985), 10 O.A.C. 344 at 346 (C.A.).
[83] In addition, I see no reason why courts should not also consider compensation to
a lawyer for the risk assumed in acting without the guarantee of payment. This is, of
course, where the discussion becomes controversial. Some argue that allowing a lawyer
to be compensated for the risk assumed increases the concerns about the abuses that
historically the law of champerty aimed to prevent. However, I do not think that that
needs to be the case. The emphasis here should be on the reasonableness and fairness of
the compensation to the lawyer for assuming the risk. Many jurisdictions that have
expressly approved contingency fee agreements have set out the criteria for addressing
the amount of compensation that will be permitted. Indeed, Ontario has done so in the
2002 CanLII 45046 (ON CA)

Class Proceedings Act. In these instances, one element giving rise to compensation is
often the acceptance of risk and an assessment of the level of risk involved.
[84] That said, I want to sound a note of caution about the potential for unreasonably
large contingency fees. It is critical that contingency fee agreements be regulated and
that the amount of fees be properly controlled. Courts should be concerned that
excessive fee arrangements may encourage the types of abuses that historically underlay
the common law prohibition against contingency fee agreements and that they can create
the unfortunate public perception that litigation is being conducted more for the benefit of
lawyers than for their clients. Fairness to clients must always be a paramount
consideration.
[85] Notwithstanding my conclusion that contingency fee agreements should no
longer be absolutely prohibited at common law, I urge the government of Ontario to
accept the advise that it has been given for many years to enact legislation permitting and
regulating contingency fee agreements in a comprehensive and co-ordinated manner.
There are obvious advantages to having a regulatory scheme that is clearly and
specifically addressed in a single legislative enactment. There is no reason why Ontario,
like all the other jurisdictions in Canada, should not enact such a scheme. Again, I wish
to make clear that this comment is not intended to apply to family law matters, where
different factors apply.
[86] The second matter I wish to briefly address is the effect of the Solicitors Act of
Ontario on the disposition of this appeal. I start by noting that the underlying application
does not raise the question whether the proposed agreement breaches the Solicitors Act
and, strictly speaking, it is not necessary to comment on the effect of that Act on the
issues raised in this case. However, for completeness, I think a few comments are
warranted.
[87] Section 28 of the Solicitors Act reads as follows:
28. Nothing in sections 16 to 33 gives validity to a purchase
by a solicitor of the interest or any part of the interest of his
or her client in any action or other contentious proceeding
to be brought or maintained, or gives validity to an
agreement by which a solicitor retained or employed to
prosecute an action or proceeding stipulates for payment
only in the event of success in the action or proceeding, or
where the amount to be paid to him or her is a percentage
of the amount or value of the property recovered or
preserved or otherwise determinable by such amount or
value or dependent upon the result of the action or
proceeding.
[88] I agree with the applications judge and others who have observed that this section
and other similarly worded sections do not prohibit contingency fee agreements. See
Bergel & Edson, supra, at 791-92; and Thai Trading, supra, at 785. The section says
nothing more than contingency fee agreements are not permitted by the Solicitors Act if
they are not otherwise permitted.
2002 CanLII 45046 (ON CA)

[89] Finally, I want to address the Rules of Professional Conduct of the Law Society
of Upper Canada. Again, the application that underlies this appeal does not call for a
determination whether the proposed agreement contravenes these Rules. Because this
argument was not fully developed on the appeal, I think the issue of the application of
those Rules is better left for another occasion. That said, the Rules of Professional
Conduct and the complaints and disciplinary regimes of the Law Society clearly have a
role to play in ensuring that lawyers who enter into contingency fee agreements follow
the ethical and professional standards set out in the Rules, so that the abuses feared in the
past do not become a reality in the future.
DISPOSITION
[90] For the reasons above, I would allow the appeal and set aside the judgment of the
court below. Rather than dismissing the application brought by the respondent, I would
stay that application on the basis that it is premature.
[91] As to costs, the respondent has achieved substantial success on the central issues
raised by the application and on this appeal. The applications judge determined in the
exercise of her discretion that, because of the novelty of the issue raised, this was a case
in which there should be no order as to costs for the proceeding before her. I would not
interfere with that decision.
[92] However, I would order that the appellant pay to the respondent 80 percent of the
costs of this appeal on a partial indemnity basis. If the parties are unable to agree upon
the amount of the costs, the respondent shall deliver a bill of costs, together with any
submissions in writing within 30 days of the release of this judgment. The appellant shall
have 7 days from the date of receiving such submissions to make written submissions in
response.
[4] [93] I would make no order with respect to the costs of the
interveners.
RELEASED: “SEP 10 2002”
“DOC”
“Dennis O’Connor A.C.J.O.”
“I agree R.S. Abella J.A.”
“I agree J.C. MacPherson J.A.”
2002 CanLII 45046 (ON CA)

TAB 9

RULE 13 INTERVENTION
LEAVE TO INTERVENE AS ADDED PARTY
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene
as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a
question of law or fact in common with one or more of the questions in issue in the
proceeding. R.R.O. 1990, Reg. 194, r. 13.01 (1).
(2) On the motion, the court shall consider whether the intervention will unduly delay or
prejudice the determination of the rights of the parties to the proceeding and the court
may add the person as a party to the proceeding and may make such order as is just.
R.R.O. 1990, Reg. 194, r. 13.01 (2).
LEAVE TO INTERVENE AS FRIEND OF THE COURT
13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or
master, and without becoming a party to the proceeding, intervene as a friend of the court
for the purpose of rendering assistance to the court by way of argument. R.R.O. 1990,
Reg. 194, r. 13.02; O. Reg. 186/10, s. 1.
LEAVE TO INTERVENE IN DIVISIONAL COURT OR COURT OF APPEAL
13.03 (1) Leave to intervene in the Divisional Court as an added party or as a friend of
the court may be granted by a panel of the court, the Chief Justice or Associate Chief
Justice of the Superior Court of Justice or a judge designated by either of them. R.R.O.
1990, Reg. 194, r. 13.03 (1); O. Reg. 292/99, s. 4; O. Reg. 186/10, s. 2.
(2) Leave to intervene as an added party or as a friend of the court in the Court of Appeal
may be granted by a panel of the court, the Chief Justice of Ontario or the Associate
Chief Justice of Ontario. R.R.O. 1990, Reg. 194, r. 13.03 (2); O. Reg. 186/10, s. 2.
Note: On July 1, 2012, subrule (2) is amended by striking out “the Chief Justice of
Ontario or the Associate Chief Justice of Ontario” at the end and substituting “the
Chief Justice or Associate Chief Justice of Ontario or a judge designated by either of
them”. See: O. Reg. 55/12, ss. 1, 16 (1).
COMMENCEMENT OF PROCEEDINGS
RULE 13.1 PLACE OF COMMENCEMENT AND HEARING OR TRIAL
PLACE OF COMMENCEMENT
1

Statute or Rule Governing Place of Commencement, Trial or Hearing
13.1.01 (1) If a statute or rule requires a proceeding to be commenced, brought, tried or
heard in a particular county, the proceeding shall be commenced at a court office in that
county and the county shall be named in the originating process. O. Reg. 14/04, s. 10.
Choice of Place
(2) If subrule (1) does not apply, the proceeding may be commenced at any court office
in any county named in the originating process. O. Reg. 14/04, s. 10.
TRANSFER
Motion to Transfer to Another County
13.1.02 (1) If subrule 13.1.01 (1) applies to a proceeding but a plaintiff or applicant
commences it in another place, the court may, on its own initiative or on any party’s
motion, order that the proceeding be transferred to the county where it should have been
commenced. O. Reg. 14/04, s. 10.
(2) If subrule (1) does not apply, the court may, on any party’s motion, make an order to
transfer the proceeding to a county other than the one where it was commenced, if the
court is satisfied,
(a) that it is likely that a fair hearing cannot be held in the county where the proceeding
was commenced; or
(b) that a transfer is desirable in the interest of justice, having regard to,
(i) where a substantial part of the events or omissions that gave rise to the claim
occurred,
(ii) where a substantial part of the damages were sustained,
(iii) where the subject-matter of the proceeding is or was located,
(iv) any local community’s interest in the subject-matter of the proceeding,
(v) the convenience of the parties, the witnesses and the court,
(vi) whether there are counterclaims, crossclaims, or third or subsequent party
claims,
(vii) any advantages or disadvantages of a particular place with respect to
securing the just, most expeditious and least expensive determination of the
proceeding on its merits,
(viii) whether judges and court facilities are available at the other county, and
2

(ix) any other relevant matter. O. Reg. 14/04, s. 10.
(3) If an order has previously been made under subrule (2), any party may make a further
motion, and in that case subrule (2) applies with necessary modifications. O. Reg. 14/04,
s. 10.
(3.1) Despite subrules 37.03 (1) and 76.05 (2) (place of hearing motions), a motion under
subrule (1), (2) or (3) may be brought and heard in the county to which the transfer of the
proceeding is sought. O. Reg. 438/08, s. 10.
Transfer on Initiative of Regional Senior Judge
(4) If subrule (1) does not apply, the regional senior judge in whose region the
proceeding was commenced may, on his or her own initiative and subject to subrules (5)
and (6), make an order to transfer the proceeding to another county in the same region.
O. Reg. 14/04, s. 10.
(5) Before making an order under subrule (4), the regional senior judge shall direct the
parties to appear before him or her, by personal attendance or under rule 1.08 (telephone
and video conference), to consider whether the order should be made. O. Reg. 14/04,
s. 10.
(6) An order under subrule (4) may be made only if the regional senior judge is satisfied
that the transfer is desirable in the interest of justice, having regard to the factors listed in
subclauses (2) (b) (i) to (ix). O. Reg. 14/04, s. 10.
(7) If an order has previously been made under subrule (4), a further order may be made,
and in that case subrule (4) applies with necessary modifications. O. Reg. 14/04, s. 10.
Effect of Order
(8) If an order is made under subrule (1), (2) or (4),
(a) the court file shall be transferred to the court office in the county to which the
proceeding has been transferred; and
(b) all further documents required to be filed in the proceeding shall be filed there.
O. Reg. 14/04, s. 10.
(9)-(11) Revoked: R.R.O. 1990, Reg. 194, r. 13.1.02 (12).
(12) Spent: O. Reg. 14/04, s. 10.
3