COURT OF APPEAL FOR ONTARIO

Transcription

1 COURT OF APPEAL FOR ONTARIO Court of Appeal File No. Divisional Court File No. 130/13 (Court File No. 08-CV CP) B E T W E E N: LISA CAVANAUGH, ANDREW HALE-BYRNE, RICHARD VAN DUSEN, MARGARET GRANGER and TIM BLACKLOCK and Plaintiffs (Respondents) GRENVILLE CHRISTIAN COLLEGE, THE INCORPORATED SYNOD OF THE DIOCESE OF ONTARIO, CHARLES FARNSWORTH, BETTY FARNSWORTH, JUDY HAY THE EXECUTRIX FOR THE ESTATE OF J. ALASTAIR HAIG and MARY HAIG Proceeding under The Class Proceedings Act, 1992, S.O. 1992, c.6 Defendants (Moving Parties) NOTICE OF MOTION FOR LEAVE TO APPEAL The defendants Grenville Christian College, Charles Farnsworth and Judy Hay the Executrix for the Estate of J. Alastair Haig will make a Motion in writing to the Court of Appeal at Osgoode Hall in the city of Toronto. PROPOSED METHOD OF HEARING: The Motion is to be heard

2 -2- [X] In writing 36 days after service of the moving party s motion record, factum and transcripts, if any, or on the filing of the moving party s reply factum, if any, whichever is earlier. THE MOTION IS FOR: (a) An Order granting leave to appeal the Order of the Divisional Court made on February 24, 2014 allowing an appeal from the Order of Perell J. dated May 23, 2012 and certifying the within action as a class proceeding; (b) The costs of this motion; and, (c) Such further and other relief as to this Honourable Court may seem just. THE GROUNDS FOR THE MOTION ARE: 1. The Divisional Court erred in law in concluding that Perell J. made a palpable and overriding error in his analysis and decision as to the preferable procedure; 2. The Divisional Court erred in law in concluding that Perell J. made an error of law in imposing an alternative procedure to a class proceeding; 3. The Divisional Court erred in law in determining that the analysis and result of the Rumley, Cloud line of cases (where the defendants were alledged to have been systemically negligent in failing to prevent abuse) applied with equal force to the case at bar where the defendants were the actual actors of the misdeeds as Perell J. called them.

3 -3- The former cases give rise to common issues and a class proceeding that constitutes the preferable procedure. The Grenville case does not; 4. The Divisional Court erred in principle in Certifying the action on the basis of a common issue Did the defendants breach a duty of care owed to the plaintiffs?. That issue in the circumstances of the within action seeks a blanket determination of the liability of actual wrongdoers (as opposed to those responsible for their conduct) to each and every class member. Such an issue either inevitably focuses upon or breaks down into an examination of each class members individual complaints or imposes a liability on a wrongdoer to each class member based upon some sort of sampling of misconduct; 5. The Divisional Court erred in both the common issues and preferability analysis in that they failed to appreciate that: i. any consideration of systemic negligence is of little or no significance in the assessment of liability of actors of the misdeeds ; ii. any analysis of the liability of actors of misdeeds to class members would require each and every student testifying on the common issues trial to repeat their evidence all over again on the individual issues, thus resulting in a significant duplication in the fact finding process; 6. The Divisional Court erred in law in failing to give appropriate deference to the preferability analysis by Perell J. which was based on the factual circumstances of the case and did not involve any issue of general principle or palpable and overriding error; 7. Rule of the Rules of Civil Procedure and s.6(1)(a) of the Courts of Justice Act S.O. 1994, c.12.

4 -4- Date: March 5, 2014 ADAIR BARRISTERS LLP Commerce Court North 25 King Street West, Suite 1101 P.O. Box 127 Commerce Court Postal Station Toronto ON M5L 1E2 Geoffrey D.E. Adair, Q.C. (11419F) Tel: Fax: Lawyers for the defendants (respondents), Grenville Christian College and Charles Farnsworth and Judy Hay the Executrix for the Estate of J. Alastair Haig TO: MCKENZIE LAKE LAWYERS LLP Barristers and Solicitors 140 Fullarton Street, Suite 1800 London ON N6A 5P2 Russell M. Raikes (24544O) Tel: Fax: Lawyers for the plaintiffs (appellants), Lisa Cavanaugh, Andrew Hale-Byrne, Richard Van Dusen, Margaret Granger and Tim Blacklock

5 -5- AND TO: KOSKIE MINSKY LLP Barristers and Solicitors 20 Queen Street West Suite 900 P.O. Box 52 Toronto ON M5H 3R3 Kirk Baert Tel: Fax: Lawyers for the plaintiffs (appellants), Lisa Cavanaugh, Andrew Hale-Byrne, Richard Van Dusen, Margaret Granger and Tim Blacklock

6 LISA CAVANAUGH et al. -and- GRENVILLE CHRISTIAN COLLEGE et al. Plaintiffs (Respondents) Defendants (Moving Parties) Court of Appeal File No. Divisional Court File No. 130/13 (Court File No. 08-CV CP) COURT OF APPEAL FOR ONTARIO PROCEEDING COMMENCED AT TORONTO NOTICE OF MOTION ADAIR BARRISTERS LLP Commerce Court North 25 King Street West, Suite 1101 P.O. Box 127 Commerce Court Postal Station Toronto ON M5L 1E2 Geoffrey D.E. Adair, Q.C. (11419F) Tel: Fax: Lawyers for the Respondents, Grenville Christian College, Charles Farnsworth and Judy Hay the Executrix for the Estate of J. Alastair Haig RCP-E 4C (July 1, 2007)