Relying On Affidavits When a Hearing Isn’t Recorded Or Transcribed

September 22, 2021
Nancy Sarmento Barkhordari
JD Barrister & Solicitor

Nancy Sarmento Barkhordari and Nital Gosai and their co-counsel appeared on behalf of the class member and were successful on this motion before the Court of Appeal for Ontario.  The decision can be found here: Johnson v Ontario, 2021 ONCA 443.

In this new blog series — recounted and written by our very own Nancy Sarmento Barkhordar, JD Barrister & Solicitor  — we will be detailing notable cases and the key takeaways from the decision. 

Johnson V. Ontario, June 2021

A recent, notable case from the OCA (Ontario Corporations Act) explores the admissibility of an Affidavit of a lawyer who attended a motion that was not recorded. 

In Johnson v Ontario, 2021 ONCA 443, the appellant, a class member in a class proceeding defended by Her Majesty the Queen in the right of Ontario, appealed an Order that denied him an extension of time to opt out of the class proceeding. 

On the motion brought before Justice Brown of the Court of Appeal of Ontario, the appellant sought to include a short affidavit from one of his counsel who appeared at the underlying hearing that was not recorded — he sought to include this in his Appeal Book and Compendium required to perfect his appeal. 

The contents of the Affidavit were limited to the comments made by the motions judge that were relevant to the appeal.  

Notwithstanding that it did not dispute the accuracy of the Affidavit, and what had transpired at the underlying motion, Ontario argued that the Affidavit should not be allowed into the appellant’s appeal book and compendium for a couple reasons:

  1. The appellant did not assert procedural unfairness as a ground of appeal;
  2. The exchange with the motion judge captured by the affidavit is irrelevant to the issues in appeal.

Justice Brown acknowledged that without a ground of appeal asserting procedural unfairness, what transpired during the underlying hearing between the court and counsel USUALLY plays little role in the determination of the appeal. 

Justice Brown concluded that the Affidavit fell within the category of “any other document relevant to the hearing of the appeal that are referred to in the Appellant’s factum” under Rule 61.10(1)(j) — and can therefore be included in the Appellant’s Appeal Book and Compendium.

Two Key Takeaways

There are two lessons to take away from this case.  

First, since underlying motions are not always recorded, counsel should maintain a good record of what was said at the hearing, just in case.  

Second, without a ground of appeal asserting procedural fairness, an affidavit of a lawyer who attended the underlying hearing that is not recorded is admissible as any other document relevant to hearing the appeal, under rule 61.10(1)(j) and can thus be included in the party’s appeal book and compendium required to perfect the appeal.

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