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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
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