By Denis G. Rancourt
Recently, there has been some discussion on the Canadian law web site SLAW about an Ontario Superior Court of Justice ruling that is argued to have set legal precedent regarding attendance of public observers and media at court-supervised out-of-court cross-examinations.
The ruling on a procedural motion is HERE (see paragraph-20). The SLAW article is HERE.
I disagree that an unambiguous precedent has been set and I disagree with the ruling on this point. I argue that both the judge (Master) and the legal commentator (SLAW article author) erred in law by following the plaintiff (moving party) in not sufficiently discerning a cross-examination for discovery on the one hand and a cross-examination on an affidavit on a motion on the other hand.
In arguing a motion in Ontario, the evidence put on the public record in the open court is filed as affidavits in the Motion Record. Once filed in this way, the evidence has the same status as sworn evidence presented in court and is subject to cross-examination (as I have learned from hard-earned experience).
In a trial, such public record court-submitted evidence would be cross-examined in court and the cross-examination would of course be public, as is the entire in-court process. In a motion, therefore, where affidavits are used only to streamline the hearing not to vitiate the open court principle, it follows that the cross-examination of the affidavit should be public.
Otherwise, one has abridged the open-court principle without any fundamental justification.
A cross-examination (or examination) for discovery is a different situation where new evidence is "discovered" that may never be put on the public record (may never be filed as evidence), that is privileged, and that is legitimately subject to privacy protection.
Discovery is to "discover" whereas cross-examination on filed public record evidence is to test the evidence, just as it would be in open court. The submitter of evidence must be prepared to be cross-examined in public, unless the court orders otherwise for special reasons.
One problem arises with the asymmetry that in affidavits on motions in Ontario hearsay "evidence" is permitted (see Rules of Civil Procedure, Ontario). In this way, a client can be shielded from cross-examination by a lawyer who submits affidavit statements with the client's evidence in hearsay.
In addition, regarding the protection of privacy which the invoked concepts of discovery privilege and assumed undertaking (to not disclose) are meant to achieve, this was a situation where the defendant being cross-examined wanted public observation in the examination of his own information. The defendant also, in this case, filed the entire cross-examination court reporter transcript into public record evidence. These circumstances were not considered by the Master.
Just as the public nature of an in-court cross-examination does not deter the investigator in the depth and method of his/her cross-examination, the public's eye cannot be argued to overly constrain the investigator in a cross-examination on affidavit evidence on a motion. Indeed, the absence of a judge (only a court reporter is present) in the latter is an additional impetus for the presence of the public eye. And, in fact, there is no evidence that the examiner was constrained by the public eye in his cross-examination.
In the specific case, the plaintiff's complaint that one of the observers blogged an objectionable critique of the cross-examination was used partly to justify the Master's Decision without a complete examination of the merits of the critique, and the blogger's critique was partly re-posted on SLAW (HERE).
The Master's (precedent setting?) judgment was (LINK):
 Mr Dearden also asks for clear direction as to who may attend at the cross examination. The need for that is demonstrated by the exhibit at p. 154 of the motion record. Certain individuals who are not parties to the action attended at the cross examination and refused to leave notwithstanding Mr. Dearden’s objections. One of these observers then posted comments on the internet describing the cross examination and attributing unethical behaviour to Mr. Dearden while also suggesting the plaintiff herself was somehow associated with evidence of wrongdoing at the university.
 Mr. Rancourt objects to such direction on the basis of the open court principle. In that he is misguided. Cross examination or discovery does not take place in open court (although it does take place under court supervision). It is only once a transcript or portions of a transcript are tendered in evidence that they become part of the court record. Motion records and exhibits at trial are part of the court record. Court hearings (such as this motion) are held in open court though that was not always the case. Prior to adoption of the “new rules” chambers motions were not considered to be in open court or on the record. In any event it is quite clear that there is no right for the public to attend an examination out of court at the office of the special examiner or court reporter. Even were that not the case however, the court could give direction about the conduct of such examinations.
 There will be a follow up cross examination if the plaintiff wishes it. No one but the parties and their lawyers and the reporter may be in attendance unless otherwise agreed.
The Master's need to make a ruling the same day (given a next day's hearing of the main motion) and the usual constraints of limited court resources were also mitigating factors.
I believe that the question of public attendance at cross-examinations on affidavits on motions in Ontario largely remains an open question, one that opposing counsel's should consider in view of preserving and extending the open court principle without which we may as well abandon all illusions of an equitable system of justice management.
Links to all pleadings and court records in the main action are posted HERE. U of O Watch commentary articles are HERE.
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