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  K.B. v. Toronto District School Board

Between
K.B., et al., applicants, and
The Toronto District School Board, et al., respondents

[2006] O.J. No. 1380
No. 55/06
Court File No. 06-CV-304058

Ontario Superior Court of Justice
Divisional Court - Toronto, Ontario
J.M. Wilson J.

Oral judgment: March 27, 2006.
(41 paras.)

Civil procedure Pre-trial procedures Summary of agreement following meeting in advance of substantive motion Parties agreed, among other things, on statement of issues and endeavoured to create agreed statement of facts.

Counsel:

Ms. Lora Patton Counsel for the Applicant

Mr. Selwyn Pieters Counsel for the Applicant

Mr. D. McLeod Counsel for the Applicant

Mr. C. Lewis Counsel for the Victim/Witnesses

Mr. Thomas McRae Counsel for the Respondents

Ms. Kalli Chapman Counsel for Toronto Police Services Board

Mr. Raj Dhir Counsel for Ontario Human Rights Commission

Mr. Tony Wong Counsel for Toronto Star Newspapers Ltd.

Ms. Martha MacKinnon Counsel for Intervenor


 1      J.M. WILSON J. (orally): This is a summary of the meeting that we held today with respect to proceeding with the substantive motion, which is scheduled for May 11th and 12th, 2006, as well as dealing with whether or not a motion may be brought to continue sealing the file and to close the courtroom for the hearing. The following, I believe, is agreed to:

(1)

With respect to the substantive motion, counsel will endeavour to come up with an agreed statement of facts and a statement of any disputed fact by March 31st, 2006, this Friday.

(2)

Counsel for the Applicants agreed that they will provide their revised Notice or Constitution Question, which will be a single document involving both parties, again, by March 31st, 2006. It is agreed that this will be re-served on the relevant authorities.

(3)

The Applicants agreed that they will amend their application to reflect the constitutional issue or issues as raised in number (2) above. And this, again, will be done by March 31st, 2006.


It is agreed with respect to the urgency and proceeding the request last week to proceed with the motion before me that the individuals involved are in the "Peach" Program at the Board and that issue of urgency has been resolved on consent.


(4)

The parties have agreed to a statement of issues which would be, perhaps, helpful for me to have a copy before we meet again. And, it is agreed that the parties will structure in whatever reasonable fashion their factums to reflect the issues as agreed to.

(5)

Mr. Lewis has been appointed to represent any witnesses or victims that may be affected by this proceeding. It is agreed that he will be provided with the entire file subject to the sealing order. No copies of anything will be made. This disclosure is to allow counsel to provide advice for clients but copies are certainly not to be provided to clients or their family. similarly, a copy of the file will be provided to Mr. McLeod, who is representing one of the other individuals who faces criminal charges. The fourth person who has not yet retained civil counsel will also receive a copy of the file subject to the same conditions.

(6)

With respect to the proposed or potential motion to seek continued sealing order and with respect to closed courtroom for the hearing, I have been advised by the counsel for the Board that the Crown Attorney is not seeking, standing and is not taking any position on this issue. Similarly, he has sought instructions from the Attorney General and the Minister of Education and their position as they are not served and are not participants in this hearing.

(7)

I will meet with whomever wants to meet on the 21st of April at 9:00 a.m., in my criminal courtroom, which will be at 361 University Avenue for approximately an hour to an hour and a half maximum. I do not intend to deal with any substantive contested matters. If I can facilitate resolution and some narrowing of the issues, that's what I would be there to do. If there is going to be a further motion with respect to either the issue with respect to the sealing order, intervenor status, or with respect to a proposed motion to close the courtroom, that would be dealt with before the judge, whoever that judge is of the Division Court hearing motions.

(8)

I make it clear that I granted the sealing order on consent without any formal materials before me. Any judge of the Divisional Court can review that matter in a substantive way if it is still an outstanding issue.

(9)

With respect to the any potential intervenors, if the motion on the 28th of April is proceeding, it is agreed that any potential intervenor shall have copies of any notices of motion and any outstanding orders. As well, counsel for the Board has agreed that he will advise in writing any of the listed or suggested listed media, which included, I believe, print, television and radio. And Mr. Levy has that list of what he used in another situation if again the matter is proceeding.

 2      The Court: That's my List. any submissions on that? Is there anything I have left out or haven't adequately covered?

 3      Ms. Chapman: I might have -- just two very small items -- I didn't hear -- the 28th of April is the date fixed in Divisional Court or any motions with respect to the intervenor status?

 4      The Court: No. We haven't worked out the timing on that. And that's something I wanted to talk to a bit of -- that - because if intervenor -- to be too late at that point in time because the motion will be heard that day.

 5      Ms. Chapman: And, in terms of the variance of the sealing order?

 6      The Court: That will be dealt with on the 28th.

 7      Ms. Chapman: Okay. And just one other thing. You indicated - the last point that if the motion was going to proceed on the 28th, then the potential intervenors will get any notices of motions, but there are still outstanding orders that some of us would like to get the notices of motions on, even if the further motion does not proceed.

 8      The Court: My understanding is that there was no objection to any potential intervenors, including the Human Rights Commission getting copies of the three notices of motion. The two notices of motion; one before Justice Perell, one before me, with respect to the sealing orders; and the motion requesting that the courtroom, etcetera, be sealed. Am I correct on that, sir?

 9      Mr. McRae: That's correct, Your Honour. But given Justice Perell's order, I would prefer if that were tried in your court order.

 10      The Court: I'm not following you.

 11      Mr. McRae: I think the notices of motion are protected by Justice Perell's order, and so, if we could have a court order from Your Honour, permitting us to provide the notices of motion my friends have been pleased to do so.

 12      The Court: I have no problem with the notices of motion being provided unless anybody else is objecting.

 13      Ms. Patton: No.

 14      The Court: Okay. So it's clear that the three notices of motion; one before Justice Perell, one before me, and then the notice of motion that was filed very late last week, would be provided to any potential intervenor with interest in this. That looks after your concerns?

 15      Mr.McRae: Thank you, Your Honour.

 16      Mr. Wong: The first item on your list -- just for...

 17      The Court: Maybe just for the records, state your name.

 18      Mr. Wong: Sorry, Tony Wong for the Toronto Star...

 19      The Court: Cause we're going to get a transcript of this...

 20      Mr. Wong: Yes, thank you, Your Honour. the first item on your list where it says the agreed statement of fact, which I understand the parties will try to work on preparing for March 31st, 2006, is that document going to be part of the sealed file or -- cause as I understand that creates in the facts for endeavour to...

 21      The Court: I think -- I don't know the answer to any of that. I think you're getting the drift that what I'm trying to do is sort out of these, sort of side issues, so the main issue can proceed. I would think it wouldn't, but I'm not ruling on this at this point in time.

 22      Mr. Wong: Yes, I guess, our concern is to the extent to confirm the sealing order as to what the -- I imagine that's for the -- to the agreed statement of facts that parties should arrive that by March 31st and I'm just not sure ...

 23      The Court: I don't think you're going to have access to that until -- well, we're assuming to be back on the 21st of April, I don't think there's going to be any informal disclosure until it's clear what's going on. I mean, I don't see how one party can informally agree there's a sealing order.

 24      Mr. Wong: That's correct. I guess -- depends on how the agreed statement of facts is drafted, presumably won't make reference to any of the witnesses, the accused or the victims ---

 25      The Court: You're not getting it before the 21st of April. We can't have informal arrangements. There are too many people, look at this courtroom. You know, if there is one or two people and everybody agrees, that will be one thing. It's too complicated.

 26      Ms. Patton: One last matter and I suspect I know the answer. But in any event to clarify -- uhm -- there may well be a matter relating to costs on this motion whether or not it goes ahead. Right now it's taken up a significant amount of time and energy for counsel. Would it be appropriate to -- I'm assuming not to raise that on the 21st be more appropriate?

 27      The Court: Well, if that's the only issue, I would rather deal with it since I know what was involved and I would rather not claw up somebody else' list dealing with costs of a matter that they didn't even hear. So, if everything's resolved except for costs, then sure, come and argue costs. Do you have any problem with that?

 28      Mr. McRae: Well, to the extent that it's only...

 29      The Court: I mean you don't want to pay -- I know.

 30      Mr. McRae: To the extent only reserving rights, but...

 31      The Court: In any event, I think a great deal has been accomplished and if, you know, you can make your pitch. But I think it makes sense that I deal with it since the matters that were before me. But I don't want to spend the 21st to tell you about costs. I mean -- I rather -- my concern is that the matters get heard. If there's time on the 21st, I'd be happy to deal with it if it's still an issue.

 32      Mr. McRae: Uhm -- with respect to the notice you direct or that I agreed to provide the media, it's simply a letter that I think it was and had been agreed. A letter that ...

 33      Ms. Patton: That's what I recall.

 34      The Court: And I would have thought you enclosed the notice of motion. Otherwise, you're going to end up with a lot of calls.

 35      Mr. McRae: Well, won't be more than 10 calls but -- thank you, Your Honour.

 36      The Court: Anything else counsel?

 37      Ms. Patton: No. Thank you.

 38      The Court: Okay. So then -- uhm -- is it fair that we just say 9 o'clock, 361, in my criminal courtroom wherever that is?

 39      Ms. Patton: Absolutely.

 40      The Court: Okay. Thank you very much. And then April 28th is booked for the day and that will be a 10:00 start. It's regular motions. If there's anything else standing by, I'm going to book it now.

 41      Okay? Thank you very much.

QL UPDATE:  20060420
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