court of appeal for ontario - academicfreedom.ca

',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.