O'Leary v. Ragone

O'Leary v. Ragone

The motions were dismissed: the court exercised its discretion under Rule 233(1) and declined to order immediate disclosure of the Crown brief because the request was premature, the PPSC undertook to disclose after the final criminal trial, much of the information will be publicly available following that trial, and premature disclosure would risk impairing the integrity of the criminal prosecutions; separately, the court held the OPP cannot be compelled to produce an officer for discovery because Ontario law (s.19(2) CLPA) and Supreme Court precedent protect Crown entities from third‑party discovery.

Citation
2021 FC 185
Parties
Plaintiff/defendant by Counterclaim: Kevin O'Leary; Plaintiff/defendant by Counterclaim: Linda O'Leary; Defendant/plaintiff by Counterclaim: Rosa Ragone; Defendant/plaintiff by Counterclaim: Antonio Ragone; Defendant/plaintiff by Counterclaim: Paula Brito; Defendant: Murray Wohlmuth; Third Party / Plaintiff/defendant by Counterclaim: Richard Ruh; Third Party / Plaintiff/defendant by Counterclaim: Irv Edwards; Defendant/plaintiff by Counterclaim: David Owen (Litigation Administrator of the Estate of Susanne Brito); Defendant/plaintiff by Counterclaim: David Owen (personally); Defendant/plaintiff by Counterclaim: Liam Owen (minor by Litigation Guardian David Owen); Defendant/plaintiff by Counterclaim: Ruby Owen (minor by Litigation Guardian David Owen); Defendant/plaintiff by Counterclaim: David Cash (minor by Litigation Guardian David Owen); Defendant/plaintiff by Counterclaim: Sandra Ocskasy; Defendant/plaintiff by Counterclaim: Allison Poltash; Defendant/plaintiff by Counterclaim: Alexander Poltash; Defendant/plaintiff by Counterclaim: Pauline New
Court
Federal Court
Jurisdiction
Canada
Judgment Date
1 February 2021
Procedural Posture
Marine Liability Act Limitation Actions / Motions for Production Under Rule 233 and Third‑party Discovery Under Rule 238 (post‑pleadings, Pre‑discovery)
Outcome
Motions dismissed
Legal Topics
Production From Non‑parties (rule 233), Third‑party Discovery (rule 238), Crown Immunity From Discovery, Disclosure of Crown Brief, Limitation of Liability Under Marine Liability Act, Public Interest in Criminal Prosecutions
Source Language
English
Maritime Law Civil Procedure Criminal Procedure Public Law Production From Non‑parties (rule 233) Third‑party Discovery (rule 238) Crown Immunity From Discovery Disclosure of Crown Brief +2 more

Case Brief

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Parties

Kevin O'Leary

Plaintiff/defendant by Counterclaim

Linda O'Leary

Plaintiff/defendant by Counterclaim

Rosa Ragone

Defendant/plaintiff by Counterclaim

Antonio Ragone

Defendant/plaintiff by Counterclaim

Paula Brito

Defendant/plaintiff by Counterclaim

Murray Wohlmuth

Defendant

Richard Ruh

Third Party / Plaintiff/defendant by Counterclaim

Irv Edwards

Third Party / Plaintiff/defendant by Counterclaim

David Owen (Litigation Administrator of the Estate of Susanne Brito)

Defendant/plaintiff by Counterclaim

David Owen (personally)

Defendant/plaintiff by Counterclaim

Liam Owen (minor by Litigation Guardian David Owen)

Defendant/plaintiff by Counterclaim

Ruby Owen (minor by Litigation Guardian David Owen)

Defendant/plaintiff by Counterclaim

David Cash (minor by Litigation Guardian David Owen)

Defendant/plaintiff by Counterclaim

Sandra Ocskasy

Defendant/plaintiff by Counterclaim

Allison Poltash

Defendant/plaintiff by Counterclaim

Alexander Poltash

Defendant/plaintiff by Counterclaim

Pauline New

Defendant/plaintiff by Counterclaim

Procedural Posture

Marine Liability Act Limitation Actions / Motions for Production Under Rule 233 and Third‑party Discovery Under Rule 238 (post‑pleadings, Pre‑discovery)

Legal Issues

  1. 1 Whether the Court should order non‑party production of the Crown brief under Rule 233(1) before the conclusion of the criminal trial
  2. 2 Whether the OPP can be compelled to produce an officer for discovery under Rule 238
  3. 3 Whether the discretionary factors (necessity, prematurity, public interest, fairness, availability from other sources) favour disclosure now

Ratio Decidendi

The motions were dismissed: the court exercised its discretion under Rule 233(1) and declined to order immediate disclosure of the Crown brief because the request was premature, the PPSC undertook to disclose after the final criminal trial, much of the information will be publicly available following that trial, and premature disclosure would risk impairing the integrity of the criminal prosecutions; separately, the court held the OPP cannot be compelled to produce an officer for discovery because Ontario law (s.19(2) CLPA) and Supreme Court precedent protect Crown entities from third‑party discovery.

Court Disposition

Motions dismissed

Orders

  • Motion to compel production of the Crown brief pursuant to Rule 233(1) dismissed.
  • Motion to compel the Ontario Provincial Police to produce an officer for examination on discovery pursuant to Rule 238 dismissed (OPP immune from third‑party discovery under Ontario CLPA s.19(2)).