court of appeal for ontario - academicfreedom.ca

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: