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Civil Litigation Dicta - Motions - Evidence. The Hospital for Sick Children v. Information and Privacy Commissioner of Ontario
In The Hospital for Sick Children v. Information and Privacy Commissioner of Ontario (Ont Divisional Ct, 2025) the Divisional Court allowed a JR motion for a sealing order [under CJA s.137(2) 'Sealing documents'] for redactions.
Here the court criticises the IPC for 'filing' a letter explaining their position, rather than a proper motion factum:[13] In response to the motion, IPCO filed a motion record, including affidavit evidence, but no factum. On the eve of this motion, IPCO provided a letter to the court, which is neither proper evidence nor a factum.
[14] In the letter, it states that they are not opposing the motion but providing the letter "to assist the Divisional Court, given the IPC's role as the statutory tribunal responsible for cyber security...". As with other submissions by tribunals assisting the Court, they should have filed a factum. There is no ability to put a letter before the Court on a motion.
[15] IPCO was the only party opposing the motion at the outset. A schedule had been set up with the hospital and IPCO for the exchange of material. IPCO served an affidavit, that the hospital had to address. But for reasons that are unexplained, IPCO then failed to file their factum and sent a letter which had all the trimmings of a factum but was not properly before the Court.
[16] In the letter, IPCO proceeds to provide reasons why the order should not be granted and provides a detailed response to the hospital's factum. Their letter does not "assist" the court by clarifying procedures, policies or the law, but is full of statements of fact. Again, all of this should have been contained in a factum.
[17] IPCO asks that no costs be ordered against it, as it only became involved to assist the Court. That is not the position taken by IPCO up until the filing of their letter. They were the only party opposing the motion, which is why a schedule was set out in my previous direction and a hearing date booked. Filing a letter in lieu of a factum does not absolve them from costs consequences.
[18] I find the Hospital is entitled to their costs of the motion. They were successful on their motion. They were required to proceed with a scheduled motion, including affidavits, factums and reply material as a direct result of IPCO’s actions.
[19] The parties may each serve and file (by uploading onto Case Center) their bill of costs and no more than 2 pages of written submissions as to quantum, within ten days, and email to the court to my attention. . Hamer v. Jane Doe
In Hamer v. Jane Doe (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a successful SLAPP CJA s.137.1 motion.
Here the court considers what evidence is admissible on motions:[72] Hearsay evidence on a motion is only admissible where the source of it is known and it is on uncontentious matters: rr. 39.01(4) and (5) of the Rules of Civil Procedure. Only the appellants and the respondents filed affidavit evidence on the motion. Specifically, none of the evidence of the individuals to which the respondents refer in their respective affidavits nor, importantly, Ms. Melo’s evidence, was before the court other than by way of hearsay. Moreover, the hearsay evidence was highly contentious. And, given that Ms. Melo’s identity was unknown, the source for the information contained in her posts was also untraceable and unknowable. As a result, the motion judge erred in relying on the respondents’ evidence that depended on hearsay. . Greenberg v. Nowack
In Greenberg v. Nowack (Ont CA, 2016) the Court of Appeal addressed the treatment of oral testimony given in a motion heard by affidavits:[35] The contempt hearing was conducted in a summary manner. The motion judge did not invite oral testimony. Mr. Nowack, who was self-represented, had filed no evidence. He did, however, make submissions as to why he failed to provide an accounting.
[36] Rule 39 requires evidence on a motion to be adduced by affidavit, cross-examination on an affidavit, the examination of a witness pending a motion, or by oral testimony at the hearing of a motion with leave.
[37] The motion judge adverted to the fact that no evidence had been put forward by Mr. Nowack in response to the contempt motion. He stated, at para. 43 of his reasons, “[b]efore the hearing, [Mr. Nowack] did not provide any affidavit evidence. At the hearing, Mr. Nowack, who had been sworn to tell the truth at earlier attendances, attempted to offer an explanation for his failure to provide the accounting.” The motion judge accordingly appears to have treated Mr. Nowack’s oral submissions as evidence.
[38] While the motion judge may well have been entitled to consider Mr. Nowack’s submissions as evidence, relying on the fact that he had previously been sworn as a witness, he ought to have informed the Greenbergs’ counsel that this was what he was doing, and afforded him the opportunity to cross-examine Mr. Nowack. I accept that the Greenbergs were taken by surprise by the motion judge’s apparent acceptance of Mr. Nowack’s brief explanation in his oral submissions as to why he had failed to comply with the outstanding orders. In these circumstances, to the extent that the motion judge relied on Mr. Nowack’s explanation to conclude that the Greenbergs had not met the test for contempt, he erred in doing so.
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