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CIVIL PROCEDURE - Parties - Class or representative actions - Procedure - Discovery - Production and inspection of documents - Appeals - Interlocutory or final orders - Quashing of

Tuesday, May 09, 2017 @ 8:34 AM  


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Motion by the defendant, the Crown, to quash an appeal brought by the plaintiff, JK. The plaintiff was the representative plaintiff in a proposed class action on behalf of individuals detained at youth detention centres, and placed in secure isolation while under the age of 18. The affidavit filed in support of certification recounted the plaintiff's experiences and included descriptions of the detention centres and solitary confinement. The Crown sought to cross-examine the plaintiff on the affidavit. In support, the Crown moved for production of the plaintiff's youth criminal records. The plaintiff took the position that the Superior Court did not have jurisdiction to order production, as production was prohibited unless authorized in Youth Justice Court under the Youth Criminal Justice Act. With the exception of one record, the motion judge found that the Crown established relevance and ordered that the plaintiff's class proceeding would be stayed unless he produced the records sought. The plaintiff appealed. The Crown sought to quash the appeal on the basis the underlying order was interlocutory in nature, and therefore any appeal lay with the Divisional Court with leave.

HELD: Motion allowed. To suggest that the order at issue was anything more than a production order with a sanction in the event of non-compliance would be to put form over substance. The order was made in the context of a production motion brought within the motion for certification. What was sought was a declaration that the youth records were necessary for the fair determination of the certification motion and that the plaintiff be required to produce them. The present case was not a motion for a stay of proceedings, as a stay would only be imposed in the event of non-production. The plaintiff, by the terms of the order, did not lose any substantive rights determinative of the action. The order was interlocutory, and any appeal lay with the Divisional Court, with leave. The appeal was accordingly quashed.

J.K. v. Ontario, [2017] O.J. No. 2095, Ontario Court of Appeal, J.L. MacFarland, K.M. van Rensburg and G. Huscroft JJ.A., April 26, 2017. TLD-May82017005