- Procedure (scheduling of hearing)
- Hearing (conduct of hearing)
This interim decision provided directions on the conduct of a section 31 right to sue proceeding. The plaintiffs (respondents) of the civil action were pursuing the release of evidence from the Crown regarding a criminal investigation, through a "Wagg motion." The parties disagreed about the scheduling of the right to sue application on its merits prior to the hearing of the Wagg Motion for disclosure, and the Crown's fulfillment of any obligations to provide evidence disclosure resulting from the motion.
The Panel found that the right to sue application may be scheduled for a hearing prior to the respondents obtaining Crown disclosure from the criminal proceedings that took place against the individual defendants. The Panel referred to its ruling regarding acceptance of the allegations contained in the Statement of Claim as established facts for the purpose of these proceedings, and that the Panel is bound by the principles of res judicata with respect to the criminal convictions, which would influence the scope of the evidence that the Panel is willing to receive and is able to consider. It was noted that procedural fairness requires the Panel to weigh the potential benefit of the possible receipt of Crown disclosure at some uncertain point in the future, against the further delay that will be incurred in waiting to receive the evidence. The wait would occur with no assurance as to when the evidence would be available or that the evidence may be significantly different in nature than the evidence that is already available. The delay would also need to be weighed against there already being very clear facts established for the purpose of these proceedings. The Panel found that the Crown disclosures would, at most, provide some improvement in the available evidence about the details of the conduct of the individual defendants. The Panel concluded that this right to sue application was ready to be scheduled for a hearing.