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Judicial Review - Factum. 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. . South Junction Triangle Grows Neighbourhood Association v City of Toronto
In South Junction Triangle Grows Neighbourhood Association v City of Toronto (Div Court, 2024) the Divisional Court noted that "in the ordinary course factums are delivered after [SS: my emphasis] all evidence is known", here where affidavits were filed and cross-examination was intended to be conducted upon them:[13] The City is prepared to produce its witness for cross-examination under Rule 39.02 in the ordinary course.
....
[19] I would not defer the cross-examination to the hearing. While the applicant has already delivered its factum, in the ordinary course factums are delivered after all evidence is known. In that way the court is given the benefit of factums that are responsive to the full evidentiary record.
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