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',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;
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BETWEEN: Introduction ONTARIO SUPER
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Page 7 and 8: TAB 1
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Page 11 and 12: - .1 ''l APPEARANCES: on Mr. R. Dea
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